*1 CEBALLOS, Richard Plaintiff-

Appellant, GARCETTI; Sundstedt;

Gil Frank Najera; County

Carol of Los An

geles, Defendants-Appellees.

No. 02-55418.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted June 2003.

Filed March *2 granted

The district court a motion for summary judgment in favor of the individ- (in ual defendants —the District Attorney his individual capacity), the then-Head *3 Deputy Attorney, District and Ceballos’s supervisor immediate the basis of —on qualified immunity, granted and a separate summary adjudication for motion in favor county of the county defendants —the and (in the Attorney District his official capaci- ty) the basis Eleventh Amendment —on immunity. Given that disputed the facts must resolved in favor Ceballos’s and that all may inferences that reasonably be drawn favor, must also be drawn in his reverse the district court’s rulings. We that, purposes hold summary judg- ment, qualified immunity was not available to the individual defendants because the clearly law was established that Ceballos’s speech addressed a matter of con- cern and that his interest the outweighed the employer’s interest in avoiding inefficiency and disruption. Humberto Carillo, Guizar and Luis Mon- Because the Eleventh Amendment does tebello, CA, for the Plaintiff-Appellant. political to apply subdivisions of the Cindy Barrio, S. Lee and Adrian Glen- state, county the could ordinarily not as- dale, CA, for the Defendants-Appellees. sert sovereign immunity, although in this

case could do if so immunity such ap- plied to the Attorney. District Whether the District Attorney, acting his official capacity, is to entitled such immuni- ty depends on whether he was performing REINHARDT, Before: or a county state function when he took O’SCANNLAIN, FISHER, and alleged Circuit actions with respect to Cebal- Judges. los. hold that in respects We most he was acting in Thus, the latter capacity. he is

REINHARDT, Judge: Circuit not entitled to Eleventh im- Richard munity, Ceballos and neither County. filed this is the pursu- action ant § to U.S.C. that he contending BACKGROUND subjected was employment to adverse ac- Ceballos has been a deputy district at- by tions supervisors his at the Angeles Los torney since 1989. In 1997 or 1998 he was County District Attorney’s Office in retali- assigned to the District Attorney’s Office’s ation for engaging speech protected by Pomona Branch year and about later was the First Amendment. He also asserts promoted to calendar deputy, supervi- county train, fails to supervise, sory responsibilities over two to dep- three discipline its district attorneys regard- uty attorneys. district In late February ing such unlawful retaliation. a defense attorney People v. law, he and other case Maryland Brady v. being prosecuted then a case Cusky, defense over obligated to turn was Office, Cebal- told Attorney’s District prepared regard- had memoranda he arrest- of the that one he believed los that the search legality of ing opinion have lied in may deputy sheriffs ing Najera contends Ceballos asked Cebal- warrant. He affidavit. warrant search the memorandum him to edit supervis- instructed Ceballos investigate. los to detective assigned one attorney statements include district deputy ing the testimony. When investigate in-court to limit his case, he decided but hearing on the reviewing After himself. testified Ceballos allegations motion, Cusky in the case court sustained documents relevant *4 scene, ques- deter- to objections Ceballos several crime visiting prosecution’s the deputy of the Ceballos affidavit asked him. the that tions defense counsel mined least, result, misrepre- that, unable had, grossly a he was the as at maintains sheriff of his conclusions facts. the tell the court certain to sented therefor) (and the regarding reasons the arising problems the Ceballos discussed The defendant’s accuracy of the warrant. in the others investigation with this from denied, prosecution and the was motion supervisor, Office, including his immediate the de- Having testified for proceeded. Deputy the Najera and then-Head Carol from the fense, removed Ceballos was Ev- Attorney, Frank Sundstedt. District team. prosecution Cusky validity of the war- that the eryone agreed 2, 2000, Garcetti, March On that Sundst- alleges questionable. was rant Ceballos a memorandum him for edt, Najera against sent Sundstedt Ceballos and retaliated affi- regarding that the his determination the memorandum discussing submitting recommending warrant, report- that and for Cusky falsified otherwise was the davit instruct- the persons Sundstedt with other ing discussing case be dismissed. to or the to deputy the memorandum the revise misconduct allegations Ceballos to ed deputy sher- accusatory truthfully at the sheriff, testifying it less make and memorandum, rewrote the defen- alleges the that hearing. Ceballos iff. He court March with retaliatory was held on actions meeting and took number dants Depart- (1) from the him from Sheriffs representatives they demoted him: against Ceballos, an- Sundstedt, and Najera, ment, deputy to that of calendar position his attorney. deputy (2) him Najera district other “threatened” deputy; trial testify that he would he told her the Sheriffs meeting Following with (3) the hear- hearing; at truthfully at the certain was Sundstedt Department, to hostile” “rude and Najera was ing itself and decid- be dismissed Cusky should that the silent (4) him; “gave [him] Sundstedt pending the case proceed to ed (5) him that treatment”; Najera informed challenging the search of a motion outcome El Monte transfer to the either he could already been filed warrant, had which in the or, to remain Branch, if he wanted informed defense Ceballos defense.1 re-assigned Branch, would he Pomona affidavit con- believed the that he counsel usually misdemeanors, position filing to statements, defense coun- and false tained attor- junior deputy district assigned testify at the hear- him to subpoenaed sel he was (6) murder case the one neys; pursuant Najera told ing. Ceballos regarding truth known the warrant awas state- there asserted The motion 1. statement, it. not have issued he would was warrant in the ment or omission disregard of deliberately inor reckless made Branch the El Monte transfer truth, approving judge had and "Freeway as an act by Ceballos described handling at the reassigned time was to a whether, must first determine when the deputy attorney district with no experience facts are taken in light most favorable (7) cases;3 trying murder he was barred and the plaintiff inferences are from handling any cases; further murder well, drawn in his favor as these facts and (8) and he was a promotion. denied inferences establish that the official’s con- duct violated constitutional right. Sauci- complaint

Ceballos filed a in the district Katz, 194, 201, er v. § court pursuant against Najera, (2001). Sundstedt, so, L.Ed.2d 272 If Attorney then-District Gil must next consider whether right Garcetti their capacities, individual as clearly well Garcetti in established the time official ca- the al- pacity leged County act. Angeles. improper Los He Id. If the right was sought wages clearly established, lost compensatory other we ask finally whether damages injunctive as well as despite fact, relief. The this the official’s unconstitu- county defendants summary moved for ad- tional conduct constituted a reasonable judication, which the district granted court mistake of fact or law. Id. at ground that the Eleventh Amend- *5 Then, S.Ct. 2151. unless the constitutional ment barred the action. Ceballos amend- error is ground, on that summary excused ed complaint, his and the individual defen- judgment must be denied.

dants moved for summary judgment, granted Speech which was A. ground By on the Ceballos’s Was Protected protected by were qualified immunity. First Amendment The district court ju- declined to exercise Ceballos contends that he exercised his risdiction over Ceballos’s state law claim First right speech free for intentional infliction of emotional dis- alleging that a deputy sheriff included tress. appeals. Ceballos false statements the Cushy war- search ANALYSIS rant parties affidavit. The appear to dis- Qualified I. Individual Defendants and pute to spoke whom Ceballos about Immunity alleged misconduct. Ceballos asserts he told Najera, Sundstedt and per- other

Ceballos argues that the district sons in the Attorney’s Office, District court in holding erred that the individual Department Sheriffs personnel, Cushy defendants were entitled to im qualified judge, and defense counsel about the un- munity. Public officials are entitled to truthful affidavit. The qualified defendants state immunity for acts that do not that Ceballos “sent the violate “clearly memorandum to established ... constitu person, Sundstedt,” one rights tional Deputy of which a Head person reasonable District Attorney, would have known.” but do not expressly Harlow v. Fitzger ald, 800, 818, dispute 457 Ceballos’s 2727, U.S. 102 assertion that spoke S.Ct. he 73 (1982); L.Ed.2d 396 to the others as well. City Rivero v. It is & unclear wheth- Francisco, County San 857, er the F.3d defendants 316 contend that Ceballos’s of (9th Cir.2002). 863 When considering a is all memorandum that is relevant here or defendant’s motion for summary judgment speech other to which Ceballos ground on the qualified of immunity, we refers not did occur. For the reasons set Therapy,'' practice punishing deputy of dis- denying Ceballos asserts that op- him the attorneys by assigning trict prosecute portunity to a them branch the murder case ad- requiring versely long opportunities affected his pro- commute to work. for motion.

1173 Salem, 320 F.3d City v. of Coszalter that, below, purposes hold forth we Cir.2003) (internal (9th quotation allegations 973-74 Ceballos’s summary judgment, omitted). greatest is “the consti- marks Content the memorandum wrongdoing inquiry.” First factor in the Connick speech single protected tute County, need not de- F.3d Amendment; accordingly, we v. Multnomah Johnson (9th Cir.1995) protection (quoting similar Havekost here whether termine communi- to his other Navy, 925 Dep’t be afforded should v. States United explored Cir.1991)). are (9th matters best cations. Those F.2d at trial. public employee A addresses do employees Although public concern when matter of “ right to free their relinquish social, or ‘political, to an issue relates ” do neither employment, of their virtue community.’ Brew other concern First Amendment absolute they enjoy Connick, 461 ster, (quoting 149 F.3d at 978 Churchill, 511 U.S. v. rights. Waters 1684); 146,103 also John see L.Ed.2d 671-74, County, v. Multnomah son (1994); Educ. v. Bd. Brewster Cir.1995). (9th concerns “Speech that Dist., 149 F.3d Sch. Lynwood is needed Unified information issues about which Cir.1998). determine To the members appropriate enable protected Ceballos’s whether informed decisions about society to make Amendment, two-step apply First merits government their operation Supreme Court’s from the that stems test pro of first amendment highest degree Myers, holdings in Connick (inter Coszalter, at 973 tection.” *6 (1983), 1684, L.Ed.2d 708 75 103 S.Ct. omitted). contrast, In marks quotation nal Educ., 391 U.S. Bd. v. Pickering and of person with individual that deals “speech 811 20 L.Ed.2d 88 S.Ct. that would disputes grievances and nel (1968):(1) speech ad whether the we ask public’s evalua be of no relevance and, concern, if public of dresses matter governmental performance tion of the (2) com does, inquiry, in an engage we con public not of generally agencies, is balancing Pickering known as the monly cern.” Id. in test, whether to Ceballos’s determine Amend- scope of First defining In outweighs the himself expressing in terest public to em- accorded protection ment promoting interests “in government’s has Supreme Court ployees’ speech, avoiding work efficiency and workplace “as a citizen speech between distinguished Rivero, F.3d at 865 disruption.” place end at one public concern” matters of upon McEnaney, v. (quoting Hufford matters employee upon “as an speech Cir.2001)). (9th 1142, 1148 the other. interest” at personal Public Concern4 1684. Connick, 1. Matter of at 103 S.Ct. district an assistant dealt with Connick employee’s public Whether supervisors that her attorney’s allegations con public a matter of speech addresses distributing a her for retaliated Connick, 461 of law. question cern is colleagues. The Su- her to questionnaire This 1684. n. at 148 assistant that when the held preme Court in of “the con light made is determination colleagues’ attorney solicited her district form, speech. tent, context” of the context public test in dressing concern only with on-the- here 4. We are concerned off-duty, employee’s non-work- public City of a speech. Roe job, work-related Cf. Cir.2004) (ad- (9th speech). related Diego, F.3d 1108 San morale, on office policy ciency views for trans- government other in- employees, ferring employees, the need for griev- cluding officers, law enforcement their committee, ance and the level of speech confidence is inherently a matter of supervisors, speech See, her protect- e.g., was concern. City Blair v. Pomo- na, ed the First Amendment because these Cir.2000); F.3d questions Johnson, were intended to primarily 425. The defendants “gather ammunition for another round of do not argue that Ceballos’s First Amend- controversy” in employee’s individual ment interest is diminished because his personnel dispute. Id. at 103 S.Ct. purpose was primarily to further a person- contrast, 1684. when the al personnel dispute. Instead, assistant dis- they con- attorney trict colleagues asked her wheth- tend that allegations Ceballos’s en- law they pressured er felt in political work perjury forcement should not protected campaigns, speech her was a matter of because he included them in a memoran- public concern under the First Amend- dum to his supervisors that prepared he ment because “the issue of whether assis- fulfillment employment of an responsibili- tant attorneys district are pressured ty- political campaigns

work is a matter of Connick, Under speech that protected is interest to the community upon which it is by virtue of its content does not lose essential that employees be able to protection simply because speak freely out without retaliatory fear of directed other employees gov of that dismissal.” Id. at 149. employer ernmental rather than to mem bers of public. 147-49, 461 U.S. at Connick, What is critical under Admin, In particular, we have re explained in Roth v. Veteran’s peatedly held that exposing official States, United “point wrongdoing is no less deserving of First question: employee’s was it the protection because the point to bring wrongdoing light? Or to employee reported the misconduct to his other concern, raise issues of public be supervisors rather than to the news media. cause are concern? Or *7 See, e.g., Hufford, (“It 249 F.3d the at point to further 1150 purely some private would be (9th absurd to extend interest?” First 856 F.2d Amend 1406 Cir. ment 1988). protection only Thus, to those “[i]t is whistle-blow it is clear ‘when ers who immediately appear that ... the on information local would be of no the news.”); Ulrich, (“[T]he public’s relevance to the 308 F.3d at 979 evaluation of the public performance employee governmental of does not forfeit his agencies’ protec tion speech against governmental that of government employees re retaliation be protection ceives no cause he press chose to the his cause First internal ly.”); Amendment.” Keyser Ulrich v. v. City County & City Sacramento of Unified Francisco, (9th District, San (9th 308 Sch. F.3d 265 978 F.3d 747 Cir. Cir.2002) 2001) Vanrheen, (quoting (holding Pool v. employees 297 that did for not (9th Cir.2002)). F.3d 907 go First protection Amendment when met with the School District’s board for The individual defendants concede that purpose the charging of that their supervi allegations Ceballos’s that arresting an sor’s practices evaluation violated District deputy may sheriff have lied in a search policy and that he misusing was federal warrant affidavit constitutes whistleblow- funds). ing. We have held that government when employees speak about corruption, wrong- Nor do our provide cases any support misconduct, doing, wastefulness, or ineffi- for the defendants’ contention that a public pub- of on a matter symbolic tuted First of deprived employee’s Pool, 1228; see also concern. those lic Id. whenever protection an (holding that at 907-08 F.3d work- government to expressed, are views addressing di- included job duties whose employment others, to an pursuant ers Afri- acting as a liaison versity and Roth, plaintiff the In responsibility. communities and Latino American can shooter” “trouble as position from his fired public of concern spoke on matters after he Administration at the Veterans and ethnic issues of racial spoke about and she mismanagement, corruption, exposed office). diversity in sheriffs reports in written problems other job responsi- his of part prepared were clear, spe- our cases are Although our Concluding at 1406. F.2d bilities. colleague contends cially concurring to further were Roth’s comments holdings our en banc should revisit “for but rather grievances, personal a per and establish and its progeny Roth addressing prob- ... purpose express pro- are not employees public rule that se VA, of the at the wish besetting lems their Amendment when by the First tected institu- good for the defendants and carrying in the course speech is uttered serves, pub- and the tion, the Veterans dis-We obligations. employment their out denied Roth could not be lic,” we held employees to public right agree. simply be- protection First Amendment concern public freely matters speak wrongdoing expose to cause his efforts functioning of orderly to important pursuant reports written included were em- process, because democratic Id. duties. employment to to infor- of their access by virtue ployees, oper- regarding experience similarly mation found we have cases In other conduct, government ations, policies to be a matter employees’ officials,’’are positioned agencies made though it was even concern debate on contribute uniquely to responsibili- employment furtherance of Bay- v. concern.” Weeks matters of Davis, 169 F.3d v. In Nunez ty. Cir.2001) (9th er, (9th Cir.1999), judge directed Westminster, City (quoting Gilbrook only those assign court administrator Cir.1999)). Strip- reelection on his worked clerks who had they report right when of that ping them training sessions. campaign to attend matters significant other wrongdoing or the administrator policy, protest seriously under- supervisors would their not cam- who did clerks arranged for two integrity maintain ability to mine our attend the sessions. judge paign *8 operations.5 governmental of our consti- protest act of that this Id. We held a whether upon turn protections do not proposed its colleague justify his tries to Our 5. particular in a personal interest has a citizen employees do public that by explaining rule Connick, Indeed, activity. expressive under relating personal interest in not have highly often grievances, which are personnel than in employment duties "other to their protection at all. As do receive personal, not at This job well.” Post doing [their] above, essential to speech is free we reiterated argues, significant, he because proposition is process as an institu- an effective democratic Amend- premise of the First underlying simply matter; be- do not value we tional infringements upon protect is to ment speak on to right of individuals cause of the express to of choice freedom "individuals’ forget, we Lest personal interest. subjects of express to opinion or otherwise personal their however, per- have a many public do servants (emphasis at 1189 ensuring Post surround- themselves." that events sonal stake in public comport with the agree First ing employment that original). their While employees have often autonomy, interest. Government individual Amendment facilitates proposed per par- se rule would be rejected any Other circuits have also per ticularly whistle-blowers, detrimental to public se rule that a employee does Ceballos, such as report who official mis- any receive First protection Amendment command, up the chain of conduct because for speech that occurs within scope employees all public duty have a notify to See, his employment e.g., duties. Lewis v. supervisors any their about wrongful con- Cowen, (2d Cir.1999) 165 F.3d 161-64 of which they duct become aware. To (holding employee that a public did not deprive public employees of constitutional forgo First protection Amendment when protection when employ- fulfill this he refused to present proposed policy ment obligation, while affording pro- them changes in a positive light to the Connecti if they tection bypass supervisors their Gaming Policy Board); cut Baldassare v. tales, their profit otherwise, take for or (3d Jersey, New 250 F.3d Cir. directly to a scandal sheet or to an internet 2001) (holding internal investiga political smut purveyor defies sound rea- tor’s statement employees’ about other al son. leged criminal actions “falls squarely with public the core delineated Moreover, such per se rule would vio- Connick” though job even duties in late the principles established Connick. exposing cluded wrongdoing); Kennedy v. Subject to test, the Pickering balancing Tangipahoa Library Parish Bd. First Con protections Amendment are available trol, (5th Cir.2000) 224 F.3d public 367-376 employees who suffer retaliation (refusing to deny for First whistleblowing, pro regardless of whether library tection to a the act of branch manager who whistleblowing of in- consists wrote a forming higher supervisors letter to her public officials, level suggest Con- gressional committees, ing security measures to or the be taken at li media. The branches); Supreme brary Rodgers Banks, Court in Connick made no dis- (6th Cir.2003) tinction between internal 597-602 and external (refusing whistleblowing deny protection when it noted that to a director of quality ' is “of import management in evaluating who sent a memorandum performance of the Attorney” stating District may reconfiguration of a pa include efforts an employee “to tient bring to area would have an adverse effect light potential actual or care); wrongdoing patient Keith, Taylor v. Connick, of breach Cir.2003) trust.” (holding 103 S.Ct. 1684.6 police reports raising allegations of brutali- opportuni- sacrificed far more rights.” However, remunerative Post at 1189 - 90. response ties other compelling sectors in expose who corruption by seeks to needs, inspirational such as the call reporting supervisor his concerns to his is not your our President in 1961:”Ask not what acting spokesperson as a government for the country you you can do for what can do report. he makes his We —ask need not your country.'' employees, pro- For such consider here what circumstances a moting public good deeply personal is a prosecutor assigned prosecute corruption *9 important mission that is at per- least as as speaking government case is when he career sonal advancement. publicly corrupt practices discusses in Thus, contrary volved. to our concurring col special belief, expresses league’s The concurrence further is no there conflict between “cognizable Roth, doubts that 1401, Ceballos a has First our decision in 856 F.2d and its prosecu- hand, Amendment interest” progeny, Sullivan, because as a on one and Rust v. tor, 173, 1759, statements must be attributed to the 111 114 L.Ed.2d government, (1991), which”has no First Amendment 233 progeny, and its other.

1177 job performance a in the of routine upon touched made fellow officer ty against concern); strongly Delgado disagree. v. functions —we public matter of Cir.2002) (7th Jones, 511, public employee exposes mere fact that a 519 282 F.3d wrongdoing government or mis- to an officer’s individual deny protection (refusing a involving making regular opposed a deeds when criminal activities allegations of itself, not, special report by to a does simply official be of an elected relative in of in a memorandum result the denial First Amendment included them cause he protection. job duty Ed a is routine City Dill v. Whether supervisors); to his of (10th mond, 1193, far fac- important Cir. or non-routine is a less 155 F.3d 1202-03 1998) purposes tor for of First Amendment anal- (holding that an officer’s statements ysis public employ- than the content of the supervisors regarding reports to his speech. existed ee’s exculpatory evidence his belief in a murder case being withheld and was Regardless gov- of the form which a concern); Fikes public a matter of involved charges corrup- ernment worker makes of (11th 1079, 1084 Daphne, 79 F.3d City v. of tion, misconduct, waste, public criminal or Cir.1996) (holding police that a officer’s charges such raise serious concerns by officers of misconduct fellow report justify that merit careful assessment and a matter of high-speed chase addressed application principles. full of the Connick concern).7 Indeed, ordinarily report would be routine virtue of its form that the defendants or our considered To the extent adoption may well become non-routine virtue of colleague may suggesting content, seri- rule that its such as when contains per of a narrower se rule —a wrongdoing. official Final- deny protection charges ous of would First ly, per stripping rule all First Amend- reports contained in routine or se above, Roth, sions cited in the text do not special concurrence claims that 7. The 1401, progeny responsi stand for the broad rule ascribed to them. and its are 856 F.2d Police, Compare Sys. lopsided split, post Terrell v. Univ. Tex. circuit at 1187- ble for 1360, (5th Cir.1986), 88, 792 F.2d 1362 with Ken cases discussed in the text reveal but the nedy Tangipahoa Library weight authority v. Parish Bd. Con in other circuits that the trol, 359, Cir.2000); (5th precedents. Although 224 F.3d 367-376 our accords with 1017, Scheid, compare Thomson v. 977 F.2d instances other circuits have held some Banks, Cir.1992), (6th Rodgers job-re with v. public employees’ speech pursuant to 1021 587, (6th Cir.2003), and 344 F.3d 597-602 duties did not involve matters of lated Keith, 639, (6th concern, Taylor F.3d 643-46 ordinarily v. 338 it was because the Cir.2003); City personal compare v. Chica primarily either at issue involved Gonzalez 939, (7th Cir.2001), discharge go, 941-942 grievances of as 239 F.3d or the "routine Jones, (7th functions, Delgado 282 F.3d suggestion with v. signed where there is no Meridith, Cir.2002); compare Delgado, v. 282 F.3d at motivation.” Buazard Dill, 1202-03; (8th 1999), 519; Herts v. F.3d Cir. 155 F.3d at Mor see also Cir.2003); Smith, (8th Crow, (11th 585-86 345 F.3d v. 142 F.3d 1381-83 ris Hutchinson, Cir.1998); compare City 847 F.2d City Birming Koch v. Oladeinde v. cf. Cir.2000). (10th Cir.1988), ham, City Ed with Dill mond, (10th Cir. moving F.3d 1202-03 Only to be the Fourth Circuit seems 1998). colleague, we Accordingly, our public employees' speech unlike a rule that toward perceive any "deep confusion” in the carrying employment do not the course of out rather, circuits; point these cases obligations protected under the First other Gilmore, opposition federal nearly Urofsky v. unanimous Amendment. See (en banc). (4th Cir.2000) per rule imposition of a se courts to the protection to denying First Amendment Urofsky, that our all from all of the cases Aside 1187-88, cites, pursuant public employees’ speech to their colleague post at either have *10 job-related duties. one or more of the deci- been narrowed in protection speech spoke government employees ment from uttered to other routine, performance opposed to non- not to the the media. While routine, job “narrow, functions would inconsis- Brewster we stated that a limited very tent with the nature of the Connick weigh against focus and limited audience step test which contains a second protected speech,” a claim of 149 F.3d at factors, to in- requires us balance various (internal omitted), quotation marks cluding of those that concern our some recognized private also “the nature of concurring colleague. the statement does not remove it from the ‘public altogether.” realm of concern’ short, Id. prepared Ceballos his McPherson, (quoting v. Rankin 483 U.S. regular memorandum fulfillment of a 11, 2891, employment responsibility does not serve 387 n. 107 S.Ct. 97 L.Ed.2d Ulrich, him deprive (1987)); of the First Amendment also see 308 F.3d at protection public employees. afforded to 979; Nunez, Indeed, 169 F.3d at 1228. only precedent, Not our own but sound Supreme Court has ruled that speech reason, doctrine, Supreme Court and the publicly need not be made in order to weight authority sup- other circuits protection come within the of the First port rejection per our of a se rule that the Amendment.' See Givhan v. Line Western First Amendment protect public does not Dist., Consolidated Sch. 415- employee simply expresses because he (1979). 99 S.Ct. 58 L.Ed.2d 619 in a report supervisors views to his or in Again, question the decisive is whether the performance job-related of his other employee spoke with the intention of obligations. speech, Such all like other bringing wrongdoing light, because we speech, subject good-faith have held that “in a whistle- two-part full Connick test described above. context, blowing the breadth of one’s audi Hufford, ence is irrelevant.” 249 F.3d at Balancing 2. Test Even though speech Ceballos’s con Assuming, for the purposes analy- of our concern, stituted a matter of it is sis, speech issue is protected by not the First Amendment Sundstedt, Ceballos sent to memorandum unless the court also finds that his interest there can disputing be no the fact that he outweighs government’s charging included the material misconduct “in promoting workplace interests efficien part on the of a law enforcement officer cy avoiding workplace disruption.” bring wrongdoing “to light, merely Rivero, 865; 316 F.3d at Pickering accord purely private to further some interest.” Edue., v. Bd. Ulrich, (internal quota- 308 F.3d at 979 (1968). 1731, 20 employ L.Ed.2d 811 omitted). tions Even if Ceballos’s audi- er bears the proving burden of that the limited, ence was provide this factor would weighs balance of interests in its favor. “ support little individual defendants’ Johnson, 48 F.3d at 426. The ‘more disruption inefficiency claim of tightly the First Amendment embraces the Pickering because the was uttered vigorous showing the more ” in a “good-faith whistleblowing context.” disruption must be made.’ Id. (quoting Hufford, 249 F.3d at 1150. Wonder, Hyland (9th Cir.1992)). The defendants next maintain that their outweigh interests

The defendants contend that those Ceballos be- under our Brewster, holding in Pickering charges balanc- cause his of misconduct ing test favors them because deputy Ceballos sheriff were found to be erroneous *11 interests, part falsity legitimate to its state- Cusky court. by the balancing test.” Id. at 424. Pickering in the to be considered is a factor ment Washington, Moran v. Pickering balance. Johnson, in Unlike there is no evidence Cir.1998). We 147 F.3d recklessly, or spoke here that Ceballos however, that in order to recognized, have most, that in faith. At he acted bad speak out employees encourage public suggests evidence that his statements concern, First on matters of proved to be erroneous. As the individual ordinarily pro- held to Amendment will concede, have a prosecutors defendants statements, because tect even false duty to information favorable to disclose accused, deserving, are not including relating false statements information while themselves, protec- veracity integrity. of constitutional to a witness’s and tion, in pursuit statement is inevitable Good-faith statements made “erroneous debate, they may ultimately if pro- obligation, ... it must be this even in free incorrect, do not warrant expression are turn out to be if the freedoms of tected if Cebal- they retaliatory Accordingly, action.8 ‘breathing space’ that to have the ” in the to his los’s statements memorandum ... to survive.’ New York ‘need Sullivan, supervisor ultimately are to be determined Times Co. v. erroneous, the erroneous nature 271-72, 710, 11 L.Ed.2d 686 84 S.Ct. weight of his Button, might statements lessen the (1964) (quoting NAACP Pickering balancing under the interests 9 L.Ed.2d U.S. test, any that factor would in event not but (1963)). deprive be sufficient itself Ceballos Johnson, Johnson, at 424. In 48 F.3d protection.9 all First accorded weight considered the to be lim Assuming arguendo Ceballos’s Pickering balancing to false statements purportedly audience and erroneous disregard for the truth. ited made with reckless Johnson, weight of his First noting at 421-26. statements diminish While interests, the individual de recklessly serve a Amendment false statements interest, fendants do not meet their burden “very First Amendment limited” they explana offer no Pickering because (citing Kennedy, at 426 Arnett v. id. memorandum to 134, 162-63, tion as to how Ceballos’s 40 L.Ed.2d inefficiency resulted (1974)), supervisors that even his we nonetheless held tried to ad disruption. Ceballos unprotect- se office per statements “are not such initially by reporting problem dress ed the First Amendment obviously an supervisors, the matter substantially relate to matters responsible way seeking Instead, appropriate of the the recklessness concern. Moran, 147 F.3d at 849-50 solution. and the falseness of the state- Cf. defen Pickering factors favored (holding light considered ments should be charged deputy where commissioner showing injury of actual dant employer’s however, acceptable not show that his state- suggest, does 8. We do not mean corrective, action-critical, mayWe assume that ments were incorrect. every or other- error, however, were in employer takes in re- Ceballos's statements wise —that summary ultimately, purposes employee's good-faith sponse whistle- because to an thus, impinges given good-faith nature of his blowing retaliatory, judgment, rights. the other factors we consider statements First Amendment balance, Pickering no dif- our result in the assertions Cusky whether or not Ceballos’s argues deter- ferent that the court’s 9. Ceballos were correct. the search warrant affidavit mination *12 1180 Thus, that, we hold carrying out commissioner’s ministrative interests. program criticized program

outreach summary judgment purposes, his out, carry thereby refused to undermin- speech protected by the First Amend- was ability to ing implement commissioner’s ment.

policy disrupting workings initiative and

office); Pool, (holding 297 F.3d at 908-09 Right B. The Constitutional Was Pickering factors favored defendants Clearly Established high-profile employee where of the sher- Even if is constitution- Ceballos’s (“ office, ‘confidential, iffs who worked in a ally protected, the defendants are nonethe- ” role,’ or policy-making, public contact if qualified immunity less entitled to regarding made crude comments right clearly constitutional was not estab- detrimentally the sheriff that affected the alleged lished at the time of the violation. office) Moran, workings (quoting of the 846). 147 F.3d at As the defendants rec- right “clearly A is established” job by in- ognize, doing Ceballos was right when the contoui's of the are “suffi vestigating allegations of law enforcement ciently clear that a official reasonable in being prosecuted misconduct a case un- would that he doing understand what reporting der his direction and those that Saucier, right.” at violates 533 U.S. appeared supervi- to be meritorious to his 202, 121 2151. To wheth S.Ct. determine It imagine sors. is difficult to how the qualified immunity er applies, we must in performance of one’s duties this manner application right consider the disruptive could be or inefficient—much Brewster, specific in question. context 149 any “disruption” such less how or “ineffici- at F.3d 977. This does not mean “that an ency” outweigh public’s could interest official action im protected qualified exposure in the of corrupt or unlawful munity very question unless the action practices Department. in the Sheriffs See unlawful,” previously has been held howev (“ Hufford, 249 at 1149 would be ‘[I]t F.3d er, light pre but rather that “in the absurd to hold that the First Amendment existing ap law the unlawfulness must be generally corrupt authorizes officials to Pelzer, parent.” Hope v. 536 U.S. punish subordinates who blow the whistle (in 122 153 S.Ct. L.Ed.2d 666 simply because the somewhat dis- quotation ternal marks and citations omit ”) Roth, rupted (quoting the office.’ “ ted). ‘[ojfficials Indeed, can still be on 1407-08)); Johnson, F.2d at 48 F.3d at 427 notice them conduct violates estab (“[T]he County a legitimate does not have lished law even in factual circum novel in covering up mismanagement interest ” stances.’ Id. at In S.Ct. 2508. corruption justify and cannot retaliation order to find that clearly law was legitimate whistle-blowers as a established, then, not prior “we need find a avoiding means of that nec- disruption identical, ‘materially ease with or even sim essarily accompanies exposure.”) such In ilar,’ event, any Morgan facts.” Flores v. Hill because defendants have Uni Dist., suggest failed even to disruption or ineffi- Sch. fied ciency workings Cir.2003) in the of the District At- Hope, at (quoting Office, torney’s there is little for us to 2508). Instead, S.Ct. must “deter weigh favor of the individual defendants preexisting provided mine whether law Pickering. ‘fair warning’ the defendants with them unlawful.” sum, conduct was Id. at 1137 Ceballos’s addressed (quoting Hope, 536 U.S. at matter of concern and his interest 2508). speech outweighed the defendants’ ad- Gilbrook, holdings including argue previous that it The individual defendants (1) Roth, 1403-08, 867-70, dearly established 856 F.2d at 425-28). Johnson, a matter of speak can F.3d at Given *13 job to a speaks pursuant he concern when cases, therefore, the prior our defendants (2) Pickering under the or responsibility Pickering were on fair notice that test, were Ceballos’s statements balancing strongly favored Ceballos. The balance First Amendment. by the protected law, therefore, clearly was established in above, however, early as respect this as well.DECIDED: As discussed pursuant made we held that Objec- Acts Not C. Officials’ Were a matter of duty can be employment tively Reasonable Roth, See, at 856 F.2d e.g., concern. 1406; Pool, F.3d at 908. The defen- There is one more hurdle that Ceballos that the law in this re- argument dants’ must clear. or not the law was Whether is there- clearly not established spect was established, clearly may pre- not Ceballos fore without merit. if the as to what the vail official’s“mistake requires [objectively] law is reasonable.” Pickering to the respect With Saucier, at 533 U.S. test, that the Pick contend the defendants argue that The individual defendants their Cebal- ering balance favors them because objectively Sundstedt, conduct was reasonable be- only larger not to a spoke los audience, undisputed cause the evidence shows and the statements or to be Cusky “employment court all of the decisions of which were determined if spoke Ceballos for complained false. Yet even Plaintiff were undertaken Sundstedt, if the statements and even non-retaliatory reasons.” (there is no evidence that were incorrect are mistaken. It The defendants recklessly), in faith or they were made bad they will be able to show at possible that Ce- the defendants make no assertion alleges trial that the adverse acts Ceballos actual, po or ballos’s caused even were not taken in retaliation for his consti tential, inefficiency. disruption office However, tutionally protected speech. Thus, argument fails as well. this in other con proof of motive “[a]s that, recognized although the We have texts, Amendment this element of First Pickering in a qualified immunity inquiry questions ... involves retaliation suit context-specific, see balancing case normally should be left for trial.” fact that 979-80, Brewster, at where the 149 F.3d Ulrich, (citing at Hunt v. 308 F.3d heavily in favor of balancing weigh factors Cromartie, 541, 552, 119 S.Ct. established, clearly the law is (1999)). They may 143 L.Ed.2d 731 un- qualified immunity is therefore summary judgment. on not be resolved Gilbrook, 177 F.3d at 867- available. See trial, will have At the individual defendants Wondrash, 70; Lytle v. 182 F.3d evi opportunity to refute Ceballos’s (9th Cir.1999). Moreover, “there is a retaliatory they acted with dence in series of cases the Ninth Circuit estab- motive, would have prove or to in public’s learning that the interest lishing for other reasons taken the same actions by public conduct officials and illegal about in the of such a motive. See even absence at core of the First other matters Ulrich, 976-77. outweighs [pub- protection argu- defendants make no The individual avoiding in employer’s interest mere lic] that, clearly estab- light of our ment workplace.” 'potential disturbance law, objectively reasonable (discussing our lished Keyser, 265 F.3d at 748 of which Ceballos com- employment gaged the acts them to take the adverse for on the basis of the actions Ceballos to Eleventh Amend- plains, he is entitled alleges they retaliatory motives that he (to immunity the extent that he is ment they. Retaliatory Nor could possessed. capacity) in his official and the Coun- sued a sound basis for motives do constitute acts. ty cannot be held liable for those Here, with all dis- employment decisions. liability county defendants Thus both questions resolved favor puted factual depends question: on the same whether drawing infer- all reasonable Ceballos Attorney the District acted behalf favor, Pickering ences in his “the balanc- county. With that the state or the *14 in ing clearly weighs favor of[Ceballos] so mind, analyze we now the role of the Dis- for de- patently that it was unreasonable Attorney proceeding in to the trict relation conclude that the First fendants before us. protect speech.” not his Amendment did Gilbrook, at 177 F.3d 870. Ordinarily, designated an official as an county' a the District At- official of is

The individual defendants’ actions were —as therefore objectively torney County Angeles reasonable. We of Los a—is immunity reject qualified the defense.10 all offi- county purposes. official for Some cials, however, Among serve two masters. County Sovereign and II. Defendants attorneys: them are California’s 58 district Immunity are elected and for While these officers County Ceballos next claims the counties, they prosecute the cases on be- Garcetti, in official Angeles Los his In mixed circum- half of the state. such Attorney Ange- as District of Los capacity stances, officer we determine whether the alleged County, les are liable for the viola- county by examining is a state or a official rights. tion of his constitutional The dis- partic- state law to determine whether the trict court did not reach the merits of alleged ular acts the official is to have claims; rather, these it held that range fall committed within the of his state (directly indirectly) by were barred or county v. Mon- or functions. McMillian Eleventh Amendment United States 781, 785-86,117 County, roe 520 U.S. Constitution, Angeles Los because the (1997). 138 L.Ed.2d 3469 The County Attorney acted on behalf District Supreme California Court has held that a of the state when he took the actions of attorney district is state official when he complains. which Ceballos in public prosecutor, acts as a while other Counties are not entitled to sover county: functions he acts on behalf eign immunity. County Eason v. Clark He at once the law officer of the Dist., 1137, 1141 School Cir. county public prosecutor. and the While 2002) (citing County Luning, Lincoln capacity represents the former he 33 L.Ed. 766 to, county largely subordinate (1890)). Here, however, County can of, [county] under the control board Attorney be held liable if the District latter. supervisors, he is not so If District county acted as officer. Attorney prosecution was a state officer when he en- of criminal cases he against Although employment did taken Ce- the district court not reach verse actions question, argument We at oral the defendants ballos. are unable to do so. On the basis us, jury undisputed us to that the facts of the record before a reasonable asked hold a sub- show that Ceballos's was not sub- could infer Ceballos's was motivating causing motivating the ad- stantial factor. stantial or factor authority and in the performing acts name administrative or other people of the state. non-prosecutorial duties. The California precise courts have not defined the charac Kern, County Pitts v. Cal.4th (Cal. distinguish teristics that district attor Cal.Rptr.2d 949 P.2d 1998). ney’s prosecutorial court thus function from his The Pitts concluded that other alleging prosecutorial noted, a claim misconduct functions. Bishop As Paiute Tribe 930-37; is a claim the state. however, Id. a similar issue toas whether a Weiner, see also 210 F.3d at 1030 prosecutor was acting prosecutorial County (holding Diego the San District capacity, as opposed to an administrative Attorney acted on behalf of in alleg state or investigative capacity, arises deter edly hiding exculpatory evidence from mining whether he is entitled to absolute defendant, noting criminal while its qualified immunity 1983; § holding did not imply “district attor may guidance look for addressing to cases neys in California are state officers for all that issue. See id. at 908-09.11 purposes”). attorneys performing District A prosecutor state “is entitled to however, functions, other investigatory and *15 Bishop immunity liability from absolute under See, county. are officers of the e.g., § for violating person’s 1983 federal con County v. Inyo, Tr ibe 275 Paiute of rights stitutional or (9th Cir.2002) engages he she 893, F.3d 906-10 (reviewing ‘intimately activities associated with the state constitution and statutes and con ” judicial phase of the criminal process.’ cluding attorney that district and sheriff 1023, Broam county Bogan, v. 320 obtaining acted as officials 1028 Cir.2003) warrant), Pachtman, executing (quoting search vacated on oth Imbler v. 701, 1887, er grounds, 409, 430, 538 U.S. 123 984, S.Ct. 424 U.S. 96 S.Ct. 47 L.Ed.2d (2003). 155 L.Ed.2d (1976)). 933 Only qualified immunity 128 available, however, prosecutor to a “per Attorney Whether the District acted on forming investigatory or administrative county behalf or the state thus turns Broam, functions.” 320 F.3d at personnel on whether 1028. alleged actions part Ceballos are of the District While the line between the Attor- functions is not ney’s prosecutorial clear, 1029, or entirely functions whether he id. at it is clear that Tribe, Pitts, Auth., 899, Bishop Painte and Weiner all monwealth Ports 316 F.3d (9th Cir.2003) (applying considered whether anofficer acted on behalf factors Elev- from county purpose analysis of the state or the for enth Amendment to determine establishing liability entity whether there could be whether an is arm of the state and 1983); political 'person” § § under 1983. Whereas subdivisions therefore anot Cor- states, 1186, along agencies County Angeles, with their and offi v. Los tez (9th Cir.2002) ("[A] ''person[s]” purpose cials are for the 1188 state and its officials Monell, 663, liability, § capacity see 436 U.S. at sued in their official are not consid- 2018; 1983, § (providing persons’ meaning § 98 S.Ct. 18 U.S.C. ered within the liable”), ”person[s] sovereign generally ... immunity shall be due to the af- states, Amendment.”). agencies, state and state officials sued forded states the Eleventh capacity Similarly, in their official are not. Will v. the issue whether an officer is act- Police, 58, Dept. Michigan ing prosecutor purposes State 491 U.S. aas for of determin- 71, 2304, (1989). ing qualified immunity § 109 S.Ct. 105 L.Ed.2d 45 absolute or Although these cases did not consider the actions involves the same considerations as here, acting prosecutor Eleventh Amendment issue address the issue whether he is as a distinction, purposes determining sovereign same between states and state for immu- Thus, nity officials on one hand and counties and under the Eleventh Amendment. other, county guide § officials on the controls the out 1983 cases we our deci- discuss analyses. Aguon come under both v. Com- sion here. Cf. Attorney’s prosecutorial the District immunity justi within prosecutorial [is

“absolute function, “intimately connected only for actions that are it alone is because fied] judicial pro role prosecutor’s with the judicial phase associated with every ceedings, litigation-inducing not for process.” criminal Id. 1028. With Reed, 478, conduct.” Burns v. U.S. complain exception, does not one Ceballos 494, 111 114 L.Ed.2d 547 S.Ct. part prosecution. of a of actions taken as (1991). Actions for which there is absolute there argue, example, He does include, immunity preparing for example, Attor- a violation when the District was an information and a motion for filing Cusky ney’s pursue decided to Office Fletcher, warrant, an arrest Kalina v. despite his recommendation prosecution 118, 129, 139 L.Ed.2d 118 S.Ct. it be dismissed. Neither does he Imbler, (1997),initiating prosecution, Cusky complain of his removal from the and withhold 424 U.S. at per- challenges case. Rather he Garcetti’s trial, id. at 431-32 n. ing during evidence concerning promotion, sonnel decisions that are not di 96 S.Ct. 984. Actions demotion, squarely and transfer-decisions rectly judicial process do not related to the Attorney’s administra- within the District immunity, even if give rise to absolute Even the decision not to tive function. initiated. prosecution occur after to future murder cases reassign Ceballos Broam, Thus, when a 320 F.3d at 1031. decision, and unrelat- personnel was a investigator, Buckley prosecutor acts as ongo- any particular prosecution ed to Fitzsimmons, 5,113 274 n. Indeed, ing judicial proceeding. the de- 209, testifies as a 125 L.Ed.2d arguments support own lend fendants’ *16 parte proceeding, witness in an ex Dela alleged retaliatory that our conclusion 1064, 1067 County, v. Kauai Cruz prosecutorial were not in nature: The acts (9th Cir.2002), performs administrative defendants, Garcetti, including individual Broam, 1029, duties, F.3d at he re do not seek dismissal on the basis of abso- only qualified immunity. ceives immunity they allegedly for the acts lute alleges that Ceballos the District Instead, against they seek took Ceballos. Attorney’s retaliatory took several Office immunity, implicitly acknowl- qualified (1) him: against actions that he was de edging prosecu- that the actions not were position depu moted from of calendar torial, but administrative. (2) ty; given the choice to transfer to the sum, Attorney’s the District Office El Branch or to remain in Pomona Monte then-head, Garcetti, re-assigned filing carrying misdemeanors and its were but (a junior position usually assigned depu county they alleg- out them functions when (3) ty attorneys); district removed from edly retaliatory in the engaged acts Cebal- only prosecuting the murder case he was is, therefore, Garcetti not los describes. (4) time; handling precluded at the from entitled Eleventh Amendment immuni- (5) cases; handling future murder and de ty, County may and thus the not seek promotion.12 nied a summary adjudication ground on the acting he was on behalf of the state. Be- retaliation, alleged acts of Among these any not cause the district court did decide partic- the removal of Ceballos from a pertaining county de- handling ular murder case he was fell other issues clear, altogether allega- him are not intended as While it assume "threatened” independent sup- allegations Najera tions of harms but rather as that Ceballos’s alleged port that the other Sundstedt were "rude and hostile” towards for his assertion treatment,” him, retaliatory gave nature. him the "the silent harms were fendants, we decline to do so Ac- rights here. associational employees, cordingly, we reverse. Supreme Court dramatically began to cast See, aside the Holmesian logic. e.g., III. Intentional Infliction of Emotion- Keyishian v. Board Regents, 385 U.S. al Distress 589, (1967) 17 L.Ed.2d 629 Having granted judgment final (invalidating state denying statutes Ceballos with respect to all of his federal employment on the basis of membership in claims, the district court declined to exer- the Communist Party or other subversive jurisdiction cise over his state law claim political organizations); Cramp v. Board of intentional infliction of emotional distress. Instruction, Public 368 U.S. 82 S.Ct. Because we reverse the district court’s (1961) 7 L.Ed.2d 285 (invalidating judgment claims, on the federal we reverse state oath loyalty requiring state employ- its determination as to the state claim law deny ees to membership in the Communist as well. Party and to aid, refuse to support, “lend advice, CONCLUSION counsel or influence to the Commu- Party”); nist Wieman v. Updegraff, 344 reasons, For the foregoing we reverse (1952) 73 S.Ct. 97 L.Ed. 216 the district court and remand for further (invalidating loyalty oath prohibiting mem- proceedings. bership in a “communist front” or other REVERSED and REMANDED. organization). “subversive” O’SCANNLAIN, Circuit Judge, Supreme Court’s burgeoning recog- specially concurring: nition employees’ First Amend- ment rights reached its apex first in Pick-

I separately write although because I ering Education, v. Board concur opinion court’s Roth (1968), L.Ed.2d 811 Veteran’s Administration the United where the Court held unconstitutional States, Cir.1988), 856 F.2d 1401 con- dismissal of a school teacher who result, trols the I believe that Roth published had in his newspaper local wrongly decided ought to be *17 letter that sharply criticized overruled, the Board of perhaps by even our court’s re- superintendent and Education of schools. hearing present the case en banc. Striving to accommodate expressive the I rights public of employees special with the needs of government As we the recounted, capacity in its recently see as Roe v. a City day-to-day employer, Diego, 1108, San the Pickering of (9th Cir.2004), explained: Court for much of this Nation’s history, our generally courts accepted theory The that public employment then-judge Holmes’s may nar- which immoderately be denied altogether may be row view of the subjected First Amendment rights any conditions, of regardless public employees: may unreasonable, of “[A constable] have uniformly how been has a right rejected. constitutional to talk politics, but At the same time it cannot be he has no right gainsaid constitutional po- a that the State has interests as liceman.” Mayor v. an in employer New regulating the of McAuliffe of Bedford, 216, 220, 155 Mass. its employees 29 N.E. 517 significantly differ (Mass.1892). Beginning in the from those it mid-part possesses of in connection the twentieth century, in response regulation of the speech of the citi- of proliferation loyalty zenry oaths and other general. in problem any in grave restrictions on expressive the and case to arrive at a balance between Pickering in on citizen, repeated emphasis teacher, “[t]he as a the interests of citizen, a employee ‘as public of a public right matters of commenting upon

in State, con- public as commenting upon matters the interest in concern and 143, efficiency accidental,” at promoting cern,’ in id. employer, an was not performs it public services and it employees. through its employee public a only that when h[e]ld (citation and at 88 S.Ct. Id. upon matters a citizen speaks as omitted). its test to Applying quotations concern, as an em- instead but public bar, Court concluded at the case personal matters upon ployee knowing- of false statements proof “absent cir- interest, most unusual absent him, a teacher’s recklessly made ly or cumstances, is not the a court federal on issues of speak right of his exercise to review forum which appropriate the ba- may not furnish public importance decision tak- personnel of a the wisdom employ- from dismissal sis for his in reac- allegedly by public agency a en 1731. at 88 S.Ct. ment.” Id. employee’s behavior. tion to the ensuing decade the course Over add- (emphasis at 103 S.Ct. Id. half, to define struggled a lower courts ed). of, Pickering’s apply, and to terms apparent balancing test. amorphous II attempted Supreme Court recognition, backdrop It was this Myers, Connick clarify its doctrine Roth, court held panel of our three-judge 75 L.Ed.2d 103 S.Ct. speaks on public employee that when (1982). There, confronted the Justices his or her public importance, matters of employee brought challenge automatically pro- within the falls that her First claimed who Amendment.1 First tective ambit when she had been violated rights (“Both Roth, the content F.2d at 1406 an internal circulated having after fired that it speech reveal context of Roth’s (in the Court’s questionnaire office importance, matters concerned words) accurately characterized was “most also protection.”); see and thus deserves in- concerning grievance (“Roth’s concerned matters id. Id. policy.” ternal office protect- thus was importance Focusing largely on whether- ed.”). holding, Roth minimized— Yet so matters of speech touched employee’s indeed, entirely ignored signifi- by the “determined concern” as “public —the distinction between *18 cance of Connick’s form, state- content, given of a and context employee act- by public 147-48, speech offered an ment,” id. at carrying out his or employee in ing that as an recognize pains took Court also necessary, prong but course, by public concern speech that certain the fact 1. Of sufficient, scope of constitutional may of not a condition public employees fall within gov- merely brings within the claim protection. does not mean that It the First Amendment Amendment, speech and coverage are un- constraints on such of the First ernmental explained in per As will test the reasons constitutional se. that a thus ensures court Educ., 979 149 F.3d v. Bd. amendment stan- Brewster first for restriction of Cir.1998) (citations (9th quotations omit- determining speech in- whether dards. In ted): public concern merits volving a matter engage protection, courts constitutional expression employee’s fact an [T]he test, Pickering. balancing first announced does public concern an issue of touches on recovery. automatically entitle him not

H87 ordinary employment sages duties and nothing her has jobs” to do with their by an speech spoken employee acting as a and that virtually aspect no of the claim- expressing personal citizen his or her expressive ants’s activity any “has rele- disputed on public views matters of im vance to their employment,” pointedly Instead, port. Roth asserted that the rele observing that applied have “[W]e Picker- inquiry solely vant constitutional focuses ing’s balancing only test when[as this .in “point question: on the speech employee spoke ease] ‘as a citizen it employee’s point to bring Was upon public matters of concern’ rather wrongdoing light? Or to raise other than ‘as an employee upon only matters concern, public they issues because are ”) personal interest.’ (quoting Connick public concern? point Or was the to with its own emphasis); added see also id. further some purely private interest?” 480, 486, (O’Connor, J., S.Ct. 1003 Roth, 856 F.2d at (quoting Callaway dissenting in part) (arguing that the rele- Hafeman, 832 F.2d Cir. vant speech restrictions were unconstitu- 1987)) (quoting Glatfelter, Linhart v. only tional insofar as related to “ex- (7th Cir.1985)). As the pressive activities. that bear no nexus to reiterates, majority today Roth’s formula Government employment,” and suggesting inexorably led tion to the conclusion that regulations the relevant should be “it is clear that ... severed because similar concerns did information would be of no relevance to apply subject where “the directly matter is public’s performance evaluation duties”). related to the individual’s official governmental agencies speech of Roth thus collapses a critical dimension of government employees protec receives no Connick’s two-pronged inquiry: focus- By Maj. tion the First Amendment.” ing only on public Connick’s concern/pure- atOp. (quoting City Ulrich v. & ly personal axis, interest Roth improperly Francisco, County San quashes the controlling accompa- caselaw’s (9th Cir.2002)) omitted) (quotation nying distinction an employee’s between (emphasis in original). his, viewpoint-laden personal speech and ordinary job-related her speech.

That conclusion—that First Amend- ment encompasses any Ill employee that touches upon matters of court, fairness to the Roth Connick public importance, notwithstanding what fully did not rationalize the distinction it might best be described as the “role” of its drew between offered speaker at odds the Supreme —is employee acting employee carrying an Court’s instruction Connick. Connick out job his or her ordinary and that duties teaches us that the relevant constitutional spoken by acting as a citizen distinction is not merely between speech expressing his or touching personal views on matters of her significance disputed Nor, matters of not, public import. that does but between part, for the most speech spoken “as a the six upon have other cir citizen matters concern cuits which—in [and contrast to this court—at offered] as an *19 employee upon points various personal importance of reiterated the matters of 147, (em- interest.” Id. at 103 Connick’s citizen speech-employee speech S.Ct. 1684 added); See, phasis see distinction. e.g., also United States v. Gonzalez City v. of Union, (7th 939, Cir.2001) Nat’l Treas. Employees Chicago, 239 F.3d 942 454, 465-466, (“[T]here 1003, 130 L.Ed.2d are still limits in public employ 964 (highlighting that “with few excep- fairly ment as to what can be characterized tions, the content of respondents’ mes- speech as a ‘as citizen’ on a matter of

1188 Cir.1992) (“First (6th 1017, 1020 by a F.2d Speech exercised concern. public public to a extends protection Amendment his em of in the course employee a speaks as when he speech employee’s private of rarely fit the mold will ployment concern, but of Gilmore, on a matter citizen citizen.”); Urofsky v. aby speech in the banc) made Cir.2000) (en speech (4th not extend does 401, 407 216 F.3d employee.”); a acting of as course of whether (“[Critical to a determination 1436, Hutchinson, 1442- F.2d 847 Koch v. to First entitled speech is employee banc) Cir.1988) (en “to (10th (declining 43 the is whether protection exempting speech rule a se per establish [employ the primarily in is ‘made speech offi- employee’s an course of made the in his role primarily citizen or role as ee’s] mili- fact as duties,” viewing “that but ”) cial v. Univ. Tetrell (quoting employee.’ as the finding 1360, tating against Police, F.2d 1362 792 Sys. Tex. of (5th concern” and matters Cir.1986) (alteration addressed original)); in the factor significant “it noting that is Meridith, F.3d 548-49 172 Buazard v. Pickering”).2 under Cir.1999) (“Unless balancing required (8th is employee the opacity of Notwithstanding the relative citizen, and not a concerned speaking as its differentia- explanation for does not Connick’s the just employee, speech, employee citizen and tion between the First protection of the fall First Amend- however, strong ais there no indication is [TJhere Amendment.... drawn such a having for its ment basis refusing to making, plaintiff], thatfthe statements, taking any distinction. his change, citizen, rather than as a action concerned A following orders or employee simply as an explicitly rarely it has been stated While them.”); City v. Gillum refusing to follow Court, implicit prem- (5th Supreme Kerrville, Cir. 120-21 3 F.3d hos- the First Amendment’s underlying ise 1993) (“[W]e the inherent not focus on d[o] abridg- rules viewpoint-driven tility toward subject matter of the ‘importance’ that such ing the freedom to which on the extent speech, but in- infringe upon impermissibly constraints a citizen or spoke as terminated express Scheid, of choice 977 dividuals’ freedom ”); v. Thomson employee.... others, great inal); provoked fully at have courts Admittedly, the failure of these Teag E.g., those within courts. consternation recognition of Connick’s their to rationalize Mound, F.3d 383 City ue v. Flower 179 public-em among the roles of a distinction Cir.1999) ("Moreover, (5th rule of orderli embol ployee speaker has in some instances panels from overrul one of our ness forbids putatively to subsequent panels distin dened that Wilson's panel; to the ing prior extent cases, attempt guish or otherwise these 'primary language contradicts role'/bal Tay holdings. scope of their narrow Cf. Moore), (and decided ancing test Tenell (6th Keith, Cir. F.3d 643-46 v. lor effect.”), earlier, ironically, years of no it is Jones, 2003); Delgado v. at by Kennedy, 224 F.3d disregarded (7th Cir.2002); itself n. 13 Kennedy Tangipahoa Parish v. ("[T]he little orderliness has rule of Control, 224 F.3d Library Bd. of panel deci prior persuasive force Edmond, Cir.2000); (5th City Dill Supreme with Court at issue conflicts sion times, Cir.1998). At F.3d panel subsequent decision case to which thin, e.g., particularly have been these efforts faithful.”). ("[Officer] Delgado’s Delgado, event, deep superiors any were de within such confusion communications indeed, scope pos convey over signed only to circuits information Connick— interpreting crimes, scope of their own cases additional over but also sible facts higher re- any a clarion call scope of Connick—seems to the manner were relevant orig- (emphasis view. investigation.”) *20 subsequent personal opinions Salem, their or to otherwise Cir. 2003) express themselves. As the put Court I believe that actually quoting —but point Ill., in Rutan Republican Party v. Ceballos’s own statement of operative 62, 75-76, may 497 U.S. facts particularly illustrative here. (1990) added) (inter (emphasis opposition L.Ed.2d 52 his to the defendants’ motion omitted): summary nal citations judgment below, Ceballos de scribed as follows the basis for are deprivations [T]here less harsh than that he now claims to fall within pro dismissal that press nevertheless state tections of the First Amendment: employees applicants and to conform Pursuant their and to his duties prosecutor, associations to some as a beliefs state-selected wrote a orthodoxy. [Ceballos] The memo expressing First his Amendment concerns is not a tenure about the provision, veracity of offi- cers in protecting public [People v. employees Cuskey from actual ]. He then supervisors constructive informed his discharge. The he First intended to comply prevents Amendment with government his duties Brady v. Maryland, ... from wielding power [373 its interfere 83 S.Ct. (1963) ], with its L.Ed.2d employees’ to believe which required freedom associate, him to turn or to not believe and memo over not to defense associate. counsel. Sindermann,

See Perry also v. Statement in Opposition to De- Plaintiff’s 593, 597, Separate Statement L.Ed.2d 570 Uncontro- fendants’ (1972) (“For verted Facts quarter least a century, Conclusions Law at 4. plaintiff this Court has Counsel for made clear that ... reiterated that de- scription government may ... deny not the facts at oral argument: benefit to person on a basis that infringes his Ceballos prepared a memorandum de- constitutionally protected espe- scribing investigation] [the results of his interests — cially his interest speech. supervisors told his that he should freedom of [Mjost ... often we applied have prin- this disclose that information to the defense ciple to denials of employment.”) under Brady Maryland as he is re- added). (emphasis quired to do prosecutorial so. This is a function that engaged he’s in at this problem is that when employ- time, doing when he’s what he is sup- speak ees in the course of carrying out posed to do. routine, their required employment obli- gations, they personal have no indicate, interest in As these statements Ceballos had the content of that speech gives (other personal rise no stake than in doing his to a Instead, First right. well), job cognizable and no First Amend- is, their in actuality, interest, I State’s. ment for which he do dispute the court’s characterization now protection performance seeks —his of the relevant facts of this case—which it the basic duty communicative Brady im- presents, must, as it light poses most prosecution.” “the Brady, See Ceballos, favorable to see City Coszalter v. Indeed, 373 U.S. at 83 S.Ct. 1194.3 3. Plaintiff's own acting characterization of the governmental rele been capacity in a prosecutorial vant conduct—“This is a respect speech giving func litiga- rise to this time, tion that engaged [Ceballos Maj. is] in at this Op. tion. at 1175-76 n. 5. To Cf. doing supposed he's what he is to do” — majority's response extent the strains narrow- effectively disposes more than majori ly repeated to construe Ceballos's statements ty’s suggestion may that Ceballos not have Brady obligations referring about his —as *21 the reflects the issue of ‘importance’ the “[t]he explained, has Supreme Court

the generality level of that at reality some entity and as such an office is prosecutor’s is of employees of state almost all the Government. spokesman it is the concern.”). attorney must public by one made A [statement] the to attributed, purposes, for these and now Indeed, precedent Roth as with States, v. United Giglio Government.” books, or what federal the Ceballos 150, 154, 31 L.Ed.2d 92 S.Ct. pos- can decision employment-based state (Second) (1972) (citing Restatement federal constitutional sibly evade intrusive 272). course, “the Govern- § Of Agency retaining that, instead of Suppose review? rights. Amendment no First has ment” here, County the it has counsel as private do. Only individuals attorney repre- its own staff provided had depu- further Suppose that sentation. B this to defend assigned county counsel ty First extension of Roth’s majority) quite mis- (just like the had case routine, job- required to such protections come to sincerely, quite takenly, also but less effectively has—no activity related a has indeed that Ceballos the conclusion to safeguards such extension of than an claim retaliation First Amendment viable in at issue Con- grievances personnel file a far as to and, so consequently, went of a “plant[ed] seed nick would have— only agreeing in this court brief ev- every task that case” constitutional counsel, but by made Ceballos’s the claims every performs, ever employee ery public support arguments additional providing merely does any public employee time that its County discipline them. Could Connick, 461 to do.” supposed “what he into being hauled without fear counsel bottom, At alle- itself court to defend federal employee all, public everything after a constitution- having committed gations of carrying out the course does in as the Evidently not—for al violation? ultimately is job his or her requirements today, Roth makes majority pellucid rele- interest and to the connected counsel enable such would progeny its deci- “making informed to citizens’ vant stake personal to claim some plausibly govern- of their operation sions about This by that brief. conveyed message Terrell, Coszalter, F.3d at 973. ment,” result of absurd the kind precisely (“Because any- almost at 1360 stressing the sought avoid Connick agency within thing that occurs citizen employee and between distinction do public, we to the be of concern could speech: im- inherent interest on the not focus Pickering on emphasis repeated by the discussed of the matters portance ‘as a right Gillum, F.3d at employee.”); citizen, upon matters commenting (“[Our] by the em- the hat worn focus on concern,’ not accidental. was upon rather than speaking ployee ments; over Brady memorandum turned his merely office communica- internal defense; eventually about unduly testified constricted construc- tions—such reality this utterly Brady See belied tion is memorandum. contents forget Ceballos's instances, Let us not lawsuit. In each of those Maj. Op. at 1171. allegation of upon an predicated action is sup- “doing was what he simply Ceballos supposedly stemmed from retaliation attorney deputy district posed to do” as Brady, he pursuant informed facts that: non-discretionary quintessential- carrying out Cuskey thought the that he defense counsel function[s].” ly "prosecutorial state- contained false warrant affidavit search

1191 language, This reiterated in all of Pick- 194, wishes. U.S. at 111 S.Ct. 1759. ering’s progeny, reflects both the histor- government When the disburses ical rights evolvement of the of public funds private to convey entities employees, and common the sense real- governmental message, it may take le- ization that government offices could not gitimate and appropriate steps to ensure if every employment function decision message its is garbled neither nor became a constitutional matter. grantee. distorted the Connick, 143, 461 U.S. at 103 S.Ct. 1684. Rust, See also 198-99, at U.S. S.Ct. 1759 (“[Ejmployees remain free ... C pursue abortion-related activities when Finally, holding as Roth did that the .acting are private as individu- First protects speech offered als.”). Writing for Urofsky the en banc the course court, Judge adeptly Wilkins explained the out carrying his or her ordinary job re appropriately analogous nature of these sponsibilities “creates fundamental and two of authority: lines unnecessary schism” between the Supreme In both public employee Court’s addressing caselaw speech by pub situations — speech government-funded lic employees speech— caselaw addressing its speech government the government-fund is is otherwise entitled to control the state-sponsored. ed or Urofsky, 216 content of speech has, the because it in a at n. Supreme Consider the meaningful sense, Court’s “purchased” the instruction in Rosenberger v. Rector and speech at through issue grant of fund- Va., Visitors the Univ. 515 U.S. ing payment or of a salary. The limits 833, 115 (1995) 132 L.Ed.2d 700 government are control similar in added): (emphasis cases, both types of as well: Just as the [W]hen the speaker, State is the may it government provider as of funds cannot make content-based choices. When the the dictate content -of made out- University determines the content side the confines program, the funded provides, education it it is University Sullivan, see [Rust v. 173,] speaking, and we permitted have 111 S.Ct. 114 L.Ed.2d government to regulate the content of government as employer is restricted in

what is or is not expressed when it is ability its regulate of its speaker it private when enlists employees they speak pub- not as entities to convey own message. its lic employees, but private citizens on vein, same Sullivan, in Rust v. [500 concern, matters 114 L.Ed.2d Urofsky, 216 F.3d at n. 6. There sim- (1991)], upheld government’s ply plausible is no basis holding for Roth’s prohibition on abortion-related advice government may exercise con- applicable recipients of federal funds trol employees’ over its job-related routine family There, planning counseling. speech, when it assuredly. may exercise government did not pro- create a precisely such control over it gram to encourage private speech but through funding subsidizes its decisions. instead private used speakers to trans- specific mit pertaining information- to its D program. own recognized We government when the majority’s appropriates pub- response long poli- lic promote funds to a particular cy, but on the policy argument short law. Its of its own it say is entitled to seductively simple: what Because whistle-blow- against, damages punitive actual rendering role in important play

ers intentionally engages “[a]ny person who accountable, Amend- the First government retaliation, threats, coer- whistleblowing reprisal, ac- acts of their protect ment must *23 em- a state cion, can acts How or similar Maj. at 1174-76. Op. tivities. employment for state princi- applicant general or disagree ployee with anyone disclosure,” protected having the whistle” made who “blow for ple? Those 8547.8(b) (c), which mismanagement § & corruption or Gov’t Code Cal. government legal protections, in turn defines as: law reasonable state do deserve certainly play most protections and such that dis- communication any good faith discouraging official role in important an to an intention or demonstrates closes ex- facilitating wider misfeasance may evidence information disclose the iden- conduct—and improper of posure byor activity by agency a state any ... for it. miscreants responsible those tities of in the undertaken that is employee official employee’s performance Congress member Indeed, I of were any is in violation ... and that duties promote making laws that with charged in- regulation, or or law state federal merely a fed public policy sound —and to, corruption, not limited but cluding, interpreting charged with judge eral malfeasance, bribery, govern- theft of voted might well have Constitution —I claims, fraud, fraudulent property, ment Civil like the federal legislation favor conversion, prosecu- coercion, malicious No. Pub.L. Act Reform Service or property, tion, government (codified misuse 95-454, scattered 92 Stat. duty.... perform to willful omission U.S.C.), by the as modified of 5 sections Act Protection 8547.2(b) (d). Whistleblower § How & Gov’t Code Cal. (codified in 101-12, 103 Stat. 16 No. hundreds, Pub.L. if for the must now be strange it U.S.C.). pro It of 5 sections scattered thousands, through- legislators not the alia, vides, that no federal inter to enact country who have voted out this take, authority di who has employee laws now to discover retain such or to recommend, take, ap or meaningless— rect others essentially were their votes action, ... shall any personnel prove already provid- that the First take, take fail to or threaten take or co- protections employees with ed take, action personnel or fail to even with, many respects and in extensive applicant or any employee respect to conferred purportedly than those greater because of— employment helped they crafted by, legislation (A) by an legislative of information state any through disclosure their shepherd See, employ- Alaska Stat. applicant e.g., or which processes. 38-532; reasonably 39.90.100-150; § evi- believes Ariz.Rev.Stat. applicant or ee law, rule, 378-63; any Idaho §§ & ... a violation dences Haw.Rev.Stat. 6-2101-2109; §§ Or.Rev.Stat. regulation.... Code 659A.200-.224; Rev.Code §§ Wash. 2302(b)(8) (enumeration omit- § 6 U.S.C. 42.41.010-.902. §§ & 42.40.010-.910 ted). ratifies— the doctrine it ease—and I This Or, legislator, perhaps I a state were more than the too-common implicates like the thus a law voted to enact would have jurists Act, tendency of well-intentioned Protection Whistleblower California into a square peg policy-oriented squeeze seq. imposes It § 8547 et Code Cal. Gov’t despite the hole. For round constitutional and estab- liability upon, criminal severe function- orderly paean “to majority’s for both cause of action private lishes a ing of process,” Maj. democratic Op. at employee. The First Amendment, 1175, I fear that Roth and progeny its short, protect does not public employees’ actually pose something aof challenge to routine and required speech on behalf of concept representative democracy government. itself. More than one years hundred ago, James Bradley Thayer explained: IV [judicial review], exercise of even unavoidable, is always attended Our jurisprudence concerning the free evil,

with a serious namely, speech rights of public employees is now correction of legislative mistakes comes *24 frayed at both ends. While the panel’s from outside, and people thus decision in this case was still pending, lose political experience, and the another three-judge panel of this court moral education and stimulus that comes ruled a police officer’s sale of home from fighting question out in the videos depicting “alone, him with his face ordinary way, and correcting their own partially masked, taking off a generic po- errors. The tendency of a common and lice uniform and Roe, masturbating,” see easy resort great function, this now 356 F.3d at fell sufficiently within the lamentably common, too is to dwarf the ambit of the First Amendment political capacity of the people, and to City of Diego’s San decision to terminate deaden [their] sense moral responsi- his employment subject to balancing bility. It is light thing no to do that. under Pickering and Connick. Remark- James Bradley Thayer, John Marshall ably, panel so ruled notwithstanding 103-04, 106-07 (1901),quoted in Alexander the fact that such pornographic displays Bickel, The Dangerous Least Branch “may not be honestly considered ‘as relat- (2d ed.1986). In case, this course, ing any matter of political, social, or majority has not struck down an unwise ” other concern to the community.’ Roe, enactment; instead, it has rendered utter 356 F.3d at (Wardlaw, J., dissenting) ly superfluous a bevy of wise ones. With (quoting Connick, 461 such Guardians,4 Platonic who elect needs 1684). representatives ed at all? Roth, Between Roe and the Ninth Cir- E cuit provides now that a employee’s Properly understood, Connick teaches speech given will be degree some of First that although speech by uttered public em- protection Amendment even when it is not ployees must address issue of public based in (as some personal interest op-

import in order to come within the protec- itself) posed to that government tive shelter of the First Amendment, satis- even if it fails to touch upon matters of faction of such a virtually necessary condi- (as public import opposed to those that are tion is not by itself sufficient to trigger purely private). With this lethal combina- constitutional constraints governmental tion, pillars the twin of Pickering Instead, action. and Con- employee speech solicits speech nick—that the protection public employees of the First Amendment must when it stem both also from some results from individual employ- inter- ee’s decision to est and express his or address a personal her matter import opinions is, those views he or she order to merit constitutional —that protec- holds as a citizen and not as a public tion'—-havebeen felled. Hand, 4. See Learned (1958). Bill Rights 70 applies properly quite court

While case, the in this precedent binding as

Roth our reappraise us to come has

time free concerning the

jurisprudence publicly-employed

rights regula- governmental legitimate

scope of Because employer. capacity as in its

tion careful Connick’s is inconsistent

Roth employees’ between

differentiation role in their as citizens Roth should I believe employees, sitting en by our court overruled —if course, Supreme then,

banc, in due drifting First court’s this

Court, to steer to its back jurisprudence *25 moorings.

proper Petitioner, GUO,

Jian Attorney ASHCROFT,

John

General, Respondent. 02-73527.

No. Appeals, States Court

United Circuit.

Ninth 13, 2004. Feb. Submitted

Argued and 23, 2004. March

Filed