Lead Opinion
Plaintiff-Appellee Bruce M. Anderson brought this action against Defendant-Appellant, Chief Justice Rogelio Valdez of the Texas Thirteenth Court of Appeals (“Thirteenth Court”), asserting an individual and official capacity claim under 42 U.S.C. § 1983. Anderson alleges that, after he sent a letter to the Texas Supreme Court and filed a disciplinary complaint with the State Commission on Judicial Conduct describing what he believed to be malfeasance by Chief Justice Valdez, Valdez prevented another justice on the Thirteenth Court from hiring Anderson as a “briefing attorney,” viz., a law clerk. He further alleges that, in so doing, Valdez retaliated against him for exercising his right to free speech under the First Amendment. Valdez moved to dismiss, asserting that Anderson had failed to state a claim and that Valdez is entitled to qualified immunity. The district court denied the motion, and Valdez timely filed an interlocutory appeal pursuant to the collateral order doctrine.
I.
Facts & Pkooeedings
A. FACTS
Anderson, who has been licensed to practice law in the state of Texas since 1984, served as an assistant district attorney in Hidalgo County before being hired as a briefing attorney at the Thirteenth Court in 1988. Anderson alleges that, “[b]ecause of [his] productivity and success,”
Early in 2007, Rose Vela, yet another justice of the Thirteenth Court, hired Anderson as her briefing attorney. He remained in that position until she retired in late 2012. Anderson alleges that, as Justice Vela’s briefing attorney, his “job duties included researching and writing memo-randa on appeals and original proceedings pending before the Thirteenth Court, participating in case conferences, making recommendations to Justice Vela regarding pending motions, and performing routine administrative duties.” He expressly alleges that his “official duties” did not include reporting judicial malfeasance by a justice on that court to the Texas Supreme Court or to the State Commission on Judicial Conduct.
According to Anderson, “[i]n early 2012, Justice Vela asked Anderson to come into her office for a meeting.” “During this meeting, [she] told Anderson that she had
But Anderson alleges that he “was disturbed by the possibility that [Valdez, the chief justice,] had violated Texas law,” so he sent a letter “on his own initiative” to Wallace Jefferson, then the chief justice of the Texas Supreme Court, in late 2012. Anderson asserts that, in that letter, he told Chief Justice Jefferson “that he had ‘concerns [about] the possible violation of the Texas Penal Code by ... Valdez’.... and that ... he ‘did not know who else to report it to.’ ” He asked Chief Justice Jefferson to provide him with the name of the individual or entity “responsible for investigating such allegations” and “to keep the letter confidential because [he] was concerned that he would be retaliated against if anyone at the Thirteenth Court ... learned that he ‘was revealing possible damaging information about ... Valdez’s handling of the court’s finances.’ ”
About one week later, Jennifer L. Caf-ferty, general counsel to the Texas Supreme Court, responded to Anderson’s letter to Chief Justice Jefferson, “informing] him that his concerns about ... Valdez may be reported to the State Commission on Judicial Conduct and/or local law enforcement.” A week or so after that, “Anderson sent a letter to the State Commission on Judicial Conduct.” The letter to the Commission was “nearly identical” to that he had sent to Chief Justice Jefferson. The commission responded a few weeks later, “indicating] that it would commence an investigation into the allegations contained in Anderson’s letter” (that is, the disciplinary complaint).
In early 2013, Royce LeMoine, an investigator with the Commission, contacted Vela, who had since retired as a justice, “to inquire whether she had information relating to [Valdez’s] charging duplicate expenses to both the taxpayer-funded account of the Thirteenth Court and his political campaign fund.” Vela responded to LeMoine soon after and “provided him with various documents supporting her belief that [Valdez] had obtained double reimbursements.” The Commission “then referred the matter” to the district attorney in Travis County “for potential prosecution.” (As of early 2015, the Commission’s investigation was still “ongoing.”)
Early in 2014, Anderson applied to Justice Gregory T. Perkes, also on the Thirteenth Court, to serve as his senior briefing attorney. On May 2, 2014, Anderson interviewed with Perkes. Anderson alleges that Perkes told him that “he was the most qualified of all the applicants” and that “‘the job [was his] if [he] want[ed] it.’” Anderson says that he “quickly replied,” telling Perkes that he would “take it.” Anderson stresses that “Perkes and [he] then agreed that [he] would start on May 12” and also agreed on his compensation. He also indicates that, soon afterward, Perkes e-mailed the other justices “to in
Anderson asserts that “the [Thirteenth] Court’s practice and procedure ... allowed] each justice to mak[e] all [their own] hiring decisions related to their individual chambers” and there had been no “other occasion when one [justice] was permitted to interfere with another [justice]’s hiring decisions.” Anderson further asserts that, despite this, “[Valdez] told all of the justices not to allow Anderson to work for Justice Perkes.” He said that he did so “because Anderson had filed a complaint against [him] with the State Commission on Judicial Conduct.” After Valdez became aware that “Perkes had hired Anderson,” Valdez “began searching for excuses to interfere with Anderson’s hiring.” This included “ask[ing] a [Thirteenth Court] employee to research [the] opinions” Anderson had written “while he worked for the Thirteenth Court” and to “look into the other applicants for the position” with Perkes. “Valdez [also] convened a meeting, wherein he asked all six justices on the Thirteenth Court of Appeals to vote on whether Anderson should be permitted to work for Justice Perkes.”
Anderson contends that, on May 8, several days before Anderson was to start working for Perkes, he “received a call from an agent of the Thirteenth Court, who informed him that despite his acceptance of Justice Perkes’s offer on May 2, [he] did not have a job with the Court.” Although “[t]he agent did not provide any reason ..., [i]t [was] clear” that Valdez “had knowledge that Anderson [had] filed a complaint against [him] with the State Commission on Judicial Conduct and that [Valdez] interfered in Anderson’s hiring because of the [disciplinary] complaint.” In an e-mail, Valdez told staff at the Thirteenth Court to “call [him] to address [Ms] decision on [Anderson].” The following day, May 9, “Justice Perkes texted former Justice Vela, ‘[Valdez] went to war over Bruce [Anderson] and all of the rest of the justices cowtowed to [his] wishes.’ ” When Vela asked the reason, “Justice Perkes responded that ‘the only thing I can think of is that he got wind of [Anderson] and the investigation.’ ”
B. Proceedings
Anderson filed this suit against Valdez in his individual and official capacities under 42 U.S.C. § 1983, alleging that he violated Anderson’s right to free speech. Anderson specifically alleged that Valdez’s refusal to allow Perkes to hire him constituted retaliation for the complaints he had made to the Texas Supreme Court and the State Commission on Judicial Conduct.
Valdez then moved to dismiss. Anderson responded in opposition and also requested leave to amend his complaint. Valdez opposed the request. The district court granted Anderson leave to amend and denied Valdez’s motion to dismiss as moot. Valdez then moved to dismiss the amended complaint, and Anderson again responded in opposition. The district court granted Valdez’s motion as to Anderson’s request for declaratory relief, but otherwise denied it on its merits. Valdez timely filed a notice of interlocutory appeal.
II.
Analysis
A. JURISDICTION
Valdez contends that, in resolving his motion to dismiss, the district court erred in determining that Anderson had stated a claim against him and that he could not avail himself of a qualified immunity defense. We have jurisdiction over an interlocutory appeal of a district court’s denial of qualified immunity pursuant to
B. STANDARD OF REVIEW
We review a district court’s ruling on a motion to dismiss de novo, “accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiffs.”
C. Claim
As a preliminary matter, Valdez suggests that Anderson’s claim is subject to a heightened pleading standard because Valdez’s Rule 12(b)(6) motion to dismiss asserts a defense of qualified immunity. But, as Anderson correctly notes, Valdez misconstrues this court’s precedent in Schultea v. Wood.
In applying that general pleading standard, we consider whether Anderson has, in fact, stated such a claim. “To establish a § 1983 claim for employment retaliation related to speech, a plaintiff-employee must show: (1) he suffered an adverse employment action; (2) he spoke as a citizen on a matter of public concern; (3) his interest in the speech outweighs the government’s interest in the efficient provision of public services; and (4) the speech precipitated the adverse employment action.”
We begin by addressing the fourth element, viz., whether Anderson’s speech precipitated the adverse employment action. We then proceed to the second and third elements, viz., whether Anderson spoke as a citizen on a matter of public concern and — if so — whether his interest in that speech outweighed the government’s interest. We need not address the first element, viz., whether Anderson suffered an adverse employment action, because Valdez does not contest it.
1. Fourth Element
Valdez argues that Anderson has not satisfied the fourth element of his re-
Despite this, Valdez also contends that when Anderson’s allegations that the letter and disciplinary complaint were confidential are taken as true, they foreclose the possibility that Valdez could have known about them. In particular, Valdez states that, by “admitting] that [Anderson] asked Chief Justice Jefferson to keep his letter confidential and failing] to allege that his letter was known to anyone other than Chief Justice Jefferson and [the Texas] Supreme Court’s General Counsel,” he consequentially admits that Valdez did not know about the letter. Valdez further asserts that “the mere possibility that ... [he] could [have] learn[ed] of Anderson’s [disciplinary] complaint to the State Commission on Judicial Conduct is not sufficient to nudge Anderson’s allegations over the line from possibility to plausibility.” Anderson, of course, disputes all of this.
Valdez misses the mark. With regard to the letter, Anderson’s allegation is that he asked Chief Justice Jefferson to keep the letter confidential, not that Chief Justice Jefferson actually did so. In fact, Anderson alleged that Chief Justice Jefferson did not answer the letter himself, establishing that the letter had not remained confidential.
With regard to the disciplinary complaint, Valdez contends that Texas law requires the Commission on Judicial Conduct to keep such complaints confidential. But this misstates that law. Although “the papers filed with and proceedings before the commission are confidential prior to the filing of formal charges,” this is subject to specified exceptions.
Anderson was not required to allege how Valdez knew of the letter and complaint,
2. Second & Thikd Elements
Valdez next asserts that Anderson is unable to satisfy the second and third elements of his retaliation claim, viz., whether Anderson spoke as a citizen on a matter of public concern and — if so — whether his interest in that speech outweighed the government’s interest. Valdez claims that, by sending the letter and filing the complaint, Anderson was acting pursuant to his official duties as a public employee, so his speech was unprotected. Valdez suggests more specifically that Anderson’s ethical duties as a lawyer — including his duty to report malfeasance — were incorporated into his official duties as a public employee. Anderson disputes this.
In Pickering v. Board of Education, the Supreme Court noted that “[t]he problem in any case is to arrive at a balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the [public employer], as an employer, in promoting the efficiency of the public services it performs through its employees.”
Garcetti begins by recognizing that “public employees do not surrender all their First Amendment rights by reason of
Garcetti notes that the “overarching objectives” of these inquiries “are evident.”
Garcetti holds that, “[w]ith these principles in mind,” an employer may restrict the employee’s speech only when it is made “pursuant to [the employee’s] official duties.”
Garcetti itself noted that the scope of its holding is not limitless. For instance, a public employee does not speak pursuant to his official duties merely because he speaks while at work.
For this reason, Garcetti’s scope is obviously not as broad as Valdez suggests. Instead, Garcetti merely allows the public employer to control an employee’s speech if made pursuant to the employee’s official duties.
Garcetti repeatedly used the “speech made pursuant to the employee’s official duties” formulation.
In Williams v. Dallas Independent School District, we explained that a public employee’s speech is made pursuant to his official duties when that speech is “made in the course of performing his employment,” whether or not that speech was specifically “demanded of him.”
In Williams, we began with a broad inquiry: “[W]e must determine the extent to which, under Garcetti, a public employee is protected by the First Amendment if his speech is not necessarily required by his job duties but nevertheless is related to his job duties.”
When the Supreme Court revisited Gar-cetti in Lane, it reiterated that “[t]he critical question under Garcetti is whether the speech at issue is itself ordinarily within
In some instances, state law is “relevant insofar as it describes the plaintiffs position, including his duties and the way he is hired, supervised and fired.”
A public employee, therefore, might speak pursuant to his official duties when he does so in a course of conduct subject to the employer’s control, even if the employer has not actually directed him to speak, not to speak, or how to speak. If the employer was entitled to exercise such control, the speech is made pursuant to the employee’s official duties; if the employer was not entitled to exercise such control, the speech is not made pursuant to the employee’s official duties. Whether the employer was entitled to control the employee’s speech determines whether that speech was made pursuant to the employee’s official duties.
The circumstances in Garcetti itself illustrate this focus on whether the employer was entitled to exercise control. There, an employer disciplined an employee for speech made pursuant to the employee’s official duties as a prosecutor. The speech, a memorandum, was made for the benefit of the employer. It was, in essence, the employer’s speech, not the employee’s own. The employer, not the employee, was entitled to control it. Just as the employer had directed the employee to create it, the employer could also direct the employee to alter or discard it. If the employee refused,
As Garcetti explained, “[t]he controlling factor ... is that [the public employee’s] expressions were made pursuant to his duties as a [prosecutor].”
In contrast to the employer in Garcetti, Valdez had no “heightened interest! ] in controlling [Anderson’s] speech.”
Most notably, Garcetti expressly applies “only to the expressions an employee makes pursuant to his or her official responsibilities [read: duties], not to statements or complaints (such as those at issue in cases like Pickering and Connick) that are made outside the duties of employment [read: pursuant to his or her duties as a citizen].”
Garcetti emphasizes that “[e]xposing governmental inefficiency and misconduct is a matter of considerable significance,”
In the context of Garcetti’s clear instruction, Anderson’s letter and disciplinary complaint were not created pursuant to his official duties. It is useful to note that Anderson’s supervisor, Vela, did not ask him, much less require him, to send the letter or to file the disciplinary complaint. Anderson expressly alleged that he did so “on his own initiative.” He also alleged that he asked Chief Justice Jefferson to “keep the letter confidential” so that no one “at
As the Supreme Court stated in Connick, “[mjatters of public concern are those which can ‘be fairly considered as relating to any matter of political, social, or other concern to the community.’ ”
We are convinced that Anderson sufficiently pleaded each of the elements of his retaliation claim. His speech, which was not made pursuant to his official duties as a public employee, was protected. Next, we must consider whether his right to protection for such speech was clearly established.
D. Qualified Immunity Defense
Valdez urges that, even if Anderson stated a retaliation claim, he (Valdez) is entitled to qualified immunity because neither Garcetti nor other relevant contemporary cases clearly established that speech made pursuant to a professional (here, ethical) duty is not speech made pursuant to an official duty. Anderson counters that Garcetti did nothing more than create a limited presumption that speech made by a public employee pursuant to an official duty is unprotected; it did not disrupt the presumption that speech made by a public employee is presumptively protected, including speech made pursuant to an ethical duty.
A person may assert a § 1983 claim against anyone who “under color of any statute, ordinance, regulation, custom, or usage, of any State” violates that person’s rights under the Constitution.
“The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”
By at least 2014, it was clearly established that an employee’s speech made “externally” concerning “an event that was not within [his or her] job requirements” was entitled to First Amendment protection.
That is not to say that, by 2014, our law applying Garcetti spoke loudly regarding every factual circumstance. Indeed, just after Anderson spoke, the Supreme Court clarified Garcetti in Lane. In Lane, the plaintiff alleged that he was retaliated against for giving testimony to a federal grand jury investigating another employee.
Thus, Lane plainly demonstrates that, following Garcetti, some First Amendment retaliation cases would still result in find-mgs of qualified immunity. That is, Garcet-ti did not plainly establish all First Amendment retaliation law. Nonetheless, Cutler makes it apparent that Garcetti, and this court’s jurisprudence interpreting it, clearly established some law. The question is how much.
Based on the allegations at issue here, Howell v. Town of Ball answers that question.
Nonetheless, we determined that the individual defendants were entitled to qualified immunity.
Reading Howell in the framework of Cutler properly synthesizes Lane’s effect on Garcetti. Namely, Garcetti and our court’s pre-Lcme jurisprudence established that when employees speak outside of their chain of command and outside of their job duties they are entitled to First Amendment protection.
Equally clear, however, is that neither Lane nor Howell meaningfully altered the analysis required by Garcetti and Cutler when an employee’s allegations do not concern the distinction between “ordinary” and “non-ordinary” job duties.
Here, there is not — and at the motion to dismiss stage there can never be — a meaningful factual dispute that implicates Lane’s ordinariness rule.
Accordingly, under Cutler, Anderson has pleaded the violation of a clearly established right. Qualified immunity thus does not apply — at least, not yet.
III.
Conclusion
For the forgoing reasons, we AFFIRM the holding of the district court and RE
. The facts — and quoted language — constitute Anderson's allegations. In this posture, we assume that those allegations are true.
. See Zarnow v. City of Wichita Falls, Tex., 500 F.3d 401, 406 (5th Cir. 2007) (“Denial of ... qualified immunity grounds typically falls within the collateral order doctrine, an exception to the final judgment rule.”).
. Thornton v. Gen. Motors Corp., 136 F.3d 450, 453 (5th Cir. 1998).
. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (internal quotation marks omitted).
. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
. Id.
. Id.
. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted).
. Beavers v. Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009) (quoting Femandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278 (5th Cir. 1993)).
. Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 251-52 (5th Cir. 2005) (second alteration in original) (quoting Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).
. Id. at 252.
. Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995).
. Id. at 1433.
. Id.
. Id. at 1433-34 (emphasis added).
. Id. at 1433 (quoting Fed. R. Civ. P. 8(e)(1)).
. Id, at 1434. Stated differently, even though the complaint and any reply are subject to distinct standards, neither standard is altered when a defendant files a responsive pleading asserting a qualified immunity defense.
. See Cox v. Kaelin, 577 Fed.Appx. 306, 312-13 (5th Cir. 2014) (unpublished) (“Regarding [the defendant’s] claimed defense of qualified immunity, he argues that a heightened plead-tag standard applies when the defense of qualified immunity is asserted, relying on Schultea v. Wood. [His] argument, however, misreads this Court’s opinion in that case.’’ (citation omitted)).
. Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir. 2007) (citations omitted) (internal quotation marks omitted).
. In any event, "[a]dverse employment actions are discharges, demotions, refusals to hire, refusals to promote, and reprimands.” Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000) (quoting Pierce v. Tex. Dep’t of Criminal Justice, Institutional Div., 37 F.3d 1146, 1149 (5th Cir. 1994)). The action here qualifies because Valdez blocked Anderson's being hired.
. Anderson also alleges: "On May 9, 2014, Justice Perkes texted former Justice Vela, "Roy [Valdez] went to war over Bruce [Anderson] and all of the rest of the justices cowtowed to Roy's wishes.” (alterations in original). Taken as true, this merely suggests that Perkes assumed that Valdez knew about Anderson’s letter and complaint on May 9, 2014.
. See Cox, 577 Fed.Appx. at 312 ("[The employee] pleads that his [speech] was 'known,' and thus it is plausible that his [speech] motivated his eventual termination.”).
. Tex. Gov’t Code Ann. § 33.032(a).
. Id. § 33.032(e).
. Id. (emphasis added).
. Id. § 33.0321 (emphasis added).
. Even if Anderson had alleged that the State Commission on Judicial Conduct kept the complaint confidential, Anderson also alleges that others — including Vela, Perlces, Caf-ferty, Lemoine, and the Travis County District Attorney’s Office — were aware of it. Valez may have become aware of it from any of them, as well.
. See Cox, 577 Fed.Appx. at 312 (“[The employee] pleads that his [speech] was 'known,' and thus it is plausible that his [speech] motivated his eventual termination.'').
. 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).
. 547 U.S. 410, 419, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006).
. Id. at 421, 126 S.Ct. 1951.
. Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 692-93 (5th Cir. 2007) ("Pickering, however, is now inapposite. The Supreme Court's recent pronouncement in Garcetti v. Ceballos added a threshold layer to the Pickering balancing test. Under Garcetti, we must shift our focus from the content of the speech to the role the speaker occupied when he said it.” (citation omitted)).
. Garcetti, 547 U.S. at 417, 126 S.Ct 1951.
. Id. at 418, 126 S.Ct. 1951 (citing Pickering, 391 U.S. at 574, 88 S.Ct. 1731).
. Id.
. Id.
. Id.
. Id.
. Id. at 419, 126 S.Ct. 1951. The latter justification appears to prevent confusion over whether a public employee who routinely speaks on behalf of the government is, in fact, speaking on behalf of the government or on his or her own behalf. As discussed infra, Garcetti expounds on this.
. Id.
. Id. at 420-21, 126 S.Ct. 1951 (emphasis added).
. Id. at 421, 126 S.Ct. 1951 ("We hold that when public employees make statements pursuant to their official duties ... the Constitution does not insulate their communications from employer discipline.”); Discipline, Merriam-Webster, http://www.merriamwebster. com/dictionary/discipline (defining "discipline” as "control gained by enforcing obedience or order” or "a rule or system of rules governing conduct or activity”).
. Id. at 420-21, 126 S.Ct. 1951. While such speech might very well relate to the employee’s official duties, it is not necessarily made pursuant to those duties.
. Id. at 421, 126 S.Ct. 1951.
. Id. at 424, 126 S.Ct. 1951.
. In Reilly v. City of Atlantic City, the Third Circuit explained that, when an individual’s official duties as a public employee overlap with his duties as a citizen, the individual speaks as a citizen. 532 F.3d 216, 231 (3d Cir. 2008) ("That an employee’s official responsibilities provided the initial impetus to [speak] is immaterial to his/her independent obligation as a citizen.... When a government employee testifies truthfully, s/he is not ‘simply performing his or her job duties,’ rather, the employee is acting as a citizen.” (quoting Garcetti, 547 U.S. at 423, 126 S.Ct. 1951)). In Lane v. Franks, the Supreme Court "resolve[d] discord” between the Eleventh and Third Circuits in favor of Reilly. Lane v. Franks, — U.S.-, 134 S.Ct. 2369, 2377, 189 L.Ed.2d 312 (2014).
. Garcetti, 547 U.S. at 423, 126 S.Ct. 1951.
. Id.
. Id.
. Whether a public employee spoke pursuant to his job duties, viz., as a public employee or as a citizen, is a threshold inquiry. In considering it, we do not also consider whether the employee spoke on a matter of public concern. Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 693 (5th Cir. 2007).
.See, e.g. Garcetti, 547 U.S. at 413, 126 S.Ct. 1951 ("The question presented by the instant case is whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee's official duties.” (emphasis added)); id. at 421, 126 S.Ct. 1951 ("The controlling factor in [the public employee’s] case is that his [speech was] made pursuant to his duties....” (emphasis added)); id. ("We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” (emphasis added)); id. at 423, 126 S.Ct. 1951 ("The court [below] suggested it would be inconsistent to compel public employers to tolerate certain employee speech made publicly but not speech made pursuant to an employee’s assigned duties. This objection misconceives the theoretical underpinnings of our decisions.” (citation omitted) (emphasis added)); id. at 424, 126 S.Ct. 1951 ("When a public employee speaks pursuant to employment responsibilities, however, there is
. Williams, 480 F.3d at 692.
. Garcetti, 547 U.S. at 421, 126 S.Ct. 1951.
. Lane v. Franks, — U.S. -, 134 S.Ct. 2369, 2379, 189 L.Ed.2d 312 (2014) (“But Garcetti said nothing about speech that simply relates to public employment or concerns information learned in the course of public employment. [It] made explicit that its holding did not turn on the fact that the [speech] at issue 'concerned the subject matter of [public employee’s] employment,’ because '[t]he First Amendment protects some expressions related to the speaker's job.’ ... "The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties.” (quoting Garcetti, 547 U.S. at 421, 126 S.Ct. 1951)).
. Williams, 480 F.3d at 694.
. Id. at 693 (emphasis added).
. Id. at 694 (emphasis added); see Nixon v. City of Houston, 511 F.3d 494, 498 (5th Cir. 2007) (noting that, in Williams, we "ultimately concluded that '[a]ctivities undertaken in the course of performing one's job are activities pursuant to official duties’ ” (quoting Williams, 480 F.3d at 694)).
. Garcetti, 547 U.S. at 423, 126 S.Ct. 1951.
. Nixon v. City of Houston, 511 F.3d 494, 498 (5th Cir. 2007); see Davis v. McKinney, 518 F.3d 304, 313 (5th Cir. 2008) (reiterating that "Activities undertaken in the course of performing one's job are activities pursuant to official duties_").
. Lane v. Franks, — U.S. -, 134 S.Ct. 2369, 2379, 189 L.Ed,2d 312 (2014) (emphasis added).
. Gibson v. Kilpatrick, 773 F.3d 661, 669 (5th Cir. 2014).
. Calderon v. Martin Cnty., 639 F.2d 271, 273 (5th Cir. 1981); see Muhammad v. Dallas Cnty. Cmty. Supervision & Corr. Dep’t, 479 F,3d 377, 380 (5th Cir. 2007).
. Restatement (Third) of Agency § 7.07 (2006) (emphasis added); see Bohnsack v. Varco, L.P., 668 F.3d 262, 273 (5th Cir. 2012).
. Restatement (Third) of Agency § 7.07. The Restatement of Employment Law notes that the "general test of employee status” requires, in part, that "the employer controls the manner and means by which the individual renders services, or the employer otherwise effectively prevents the individual from rendering those services [independently].” Restatement of Employment Law § 1.01. "Under that test, it is generally the case that a principal with the right or ability to control how an agent’s work is performed is an ‘employer’ and the agent is an ‘employee.’ ” Id. cmt. d.
. Restatement (Third) of Agency § 7.07.
. Garcetti, 547 U.S. at 421-22, 126 S.Ct. 1951.
. Id.
. Id. at 421, 126 S.Ct. 1951.
. Id.
. Id. at 422, 126 S.Ct. 1951.
. Id. at 421, 126 S.Ct. 1951 (emphasis added). That Garcetti refers to an "official duty” suggests it should be read to mean, not all duties, but those duties derived from the office (that is, the position) itself, not some extrinsic duty.
. Id. at 422, 126 S.Ct. 1951.
. Id. at 422-23, 126 S.Ct. 1951.
. Id.
. Id. at 423, 126 S.Ct. 1951 (emphasis added) (citing Pickering v, Bd. of Ed., 391 U.S. 563, 574, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)).
. Id. at 425, 126 S.Ct. 1951.
. Id.
. Id.
. Id. at 425-26, 126 S.Ct. 1951.
. See Restatement (Third) of Agency § 8.09, cmt. c ("An agent’s duty to comply with instructions is not absolute. An agent has no duty to comply with instructions that may subject the agent to criminal, civil, or administrative sanctions or that exceed legal limits on the principal's right to direct action taken by the agent. Thus, an agent has no duty to comply with a directive to commit a crime or an act the agent has reason to know will be tortious. An agent who is a member of a profession does not have a duty to follow instructions given by the principal that expose the agent to discipline for violating professional rules.... A contract provision in which an agent promises to perform an unlawful act is unenforceable.”); Restatement (Third) of the Law Governing Lawyers § 23, cmt. c (2000) ("A contract by an agent to help the principal to perform an unlawful act is unenforceable. ... The rule has special force when applied to lawyers. Lawyers who exercise their skill and knowledge so as to deprive others of their rights or to obstruct the legal system subvert the justifications of their calling.”); see also Williston on Contracts § 19:40 (4th ed. 2010) (“[A] promise to do an illegal thing for a legal consideration is unenforceable, and it is equally improper to promise to do a legal thing for an illegal consideration. If the agreement is bilateral and the promise on either side is unlawful, both promises are unenforceable, for one promise is itself unlawful and the other is given for unlawful consideration.” (footnotes omitted)); Restatement (Second) of Contracts § 178(a) (1981) (“A promise or other term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable or the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms.”); id. § 179(a) ("A public policy against the enforcement of promises or other terms may be derived by the court from (a) legislation relevant to such a policy, or (b) the need to protect some aspect of the public welfare....”).
. As a lawyer herself, Vela was subject to the same duty to file a disciplinary complaint, yet she did not. At least circumstantially, this may suggest that she believed she had no such duty and that, in fact, no such duty existed.
. Branton v. City of Dallas, 272 F.3d 730, 739 (5th Cir. 2001) (quoting Connick, 461 U.S. at 146, 103 S.Ct. 1684).
. Conaway v. Smith, 853 F.2d 789, 796 (10th Cir. 1988); see Branton, 272 F.3d at 739.
. Pickering, 391 U.S. at 574, 88 S.Ct. 1731.
. 42 U.S.C. § 1983.
. Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (quoting James v. Collin Cnty., 535 F.3d 365, 373 (5th Cir. 2008); see Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000)).
. Morgan v, Swanson, 659 F.3d 359, 370 (5th Cir. 2011).
. Id. at 371 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).
. Id. (quoting Ashcroft v, al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)).
. Id. (quoting Ashcroft, 563 U.S. at 735, 131 S.Ct 2074).
. Ashcroft, 563 U.S. at 735, 131 S.Ct. 2074; see Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).
. Id. (citations omitted).
. Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (quoting Hope v. Pelzer, 536 U.S. 730, 740, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)).
. Juarez v. Aguilar, 666 F.3d 325, 336 (5th Cir. 2011).
. Mullenix v. Luna,-U.S,-, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Ashcroft, 563 U.S. at 742, 131 S.Ct. 2074).
. Tolan v. Cotton, — U.S. -, 134 S.Ct. 1861, 1865, 188 L.Ed.2d 895 (2014).
. Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 472-73 (5th Cir. 2014) (finding that by 2010, the combination of Garcetti, Williams, Davis, and Charles v. Grief, 522 F.3d 508 (5th Cir. 2008), had resulted in clearly established law).
. Even if Anderson’s complaint to Chief Justice Jefferson was arguably a complaint up the chain of command, Anderson’s complaint to the State Commission on Judicial Conduct was a complaint out of the chain of command. And, Anderson alleges that it was the complaint to the State Judicial Conduct Commission that precipitated Valdez’s alleged retaliation pleading; "Defendant had knowledge
. 134 S.Ct. at 2375-77.
. Id. at 2376-77.
. Id. at 2379.
. Id. at 2378.
. Id. at 2381.
. 827 F.3d 515 (5th Cir. 2016).
. Id. at 519.
. Id. at 523.
. Id.
. Id. at 524.
. Id.
. Id.
. Id. at 525-26.
. Id. at 525.
. Id. (citing Gibson, 773 F.3d at 668).
. See Cutler, 767 F.3d at 472-73.
. See Gibson, 773 F.3d at 668-69; see also Hardesty v. Cochran, 621 Fed.Appx. 771, 780-81 (5th Cir. 2015) (unpublished) (“The Supreme Court’s recent decision in Lane ... did not alter First Amendment jurisprudence in any way that would render the currently applicable law not clearly established under these facts.” (internal citation omitted)).
.In addition to the ordinariness rule, Lane found that qualified immunity was proper because of conflicted eleventh circuit case law concerning First Amendment protection for sworn testimony. Cutler resolves the need to engage in such an inquiry here because Cutler found that by 2010 this circuit case law had clearly established the contours of the First Amendment protections provided by Garcetti, at least with respect to the violations that Anderson alleges.
Dissenting Opinion
dissenting:
I agree with the majority that even after Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), Anderson has plausibly alleged a violation of his First Amendment rights. Unfortunately, that is the end of our agreement, because I disagree with the majority’s reasoning to this conclusion and would grant qualified immunity.
A. First Amendment Retaliation
In the course of discussing Anderson’s First Amendment retaliation claim, the majority has made two errors. The first error constitutes dicta that need not be followed hereafter: the majority irrelevantly invoke the Restatement of Agency and state law of agency to “explain” the scope of a public employee’s official duties. The second error is in the implication that any “whistleblower” speech by a public employee, even when made pursuant to his official duties, takes the employee’s retaliation claim out of Garcetti’s threshold inquiry. After explaining these mistakes, I write why, under a proper Garcetti analysis, Anderson has stated a claim for relief.
One paragraph of the majority opinion begins by stating, “In some circumstances, state law is relevant insofar as it describes the plaintiffs position, including his duties and the way he is hired, supervised, and fired.” (The majority reinforce this idea in a lengthy footnote citing agency and contract law hornbooks.) Garcetti, to the contrary, describes the inquiry defining the scope of an employee’s duties as “a practical one,” such that formal job descriptions will not suffice to insulate employers. 547 U.S. at 424-25, 126 S.Ct. at 1961-62. It stands to reason that reference to treatises untethered to a particular public employee’s workplace will also yield little insight. In any event, the majority cites these references but does absolutely nothing with them in further analysis of Anderson’s duties. These are dicta, pure and simple.
Much more helpful than treatises in illuminating the practical scope of Garcetti are our court’s decisions that evaluated whether employees’ official duties comprehended the speech for which they claimed First Amendment protection. Thus, in Williams v. Dallas Independent School District, 480 F.3d 689 (5th Cir. 2007), this court concluded that a high school athletic director’s communications to the principal expressing concern about the use of funds appropriated for athletic activities were made “in the course of performing” his job duties sufficiently to preclude First Amendment protection. See id. at 693-94. In Davis v. McKinney, 518 F.3d 304 (5th Cir. 2008), the question was whether any of several complaints made by a former auditor of a state university “up the chain of command” and to the FBI and EEOC about internal audit problems, staffing issues and potential racial discrimination were “in the course of performing” the auditor’s job duties. See id. at 312-16. The focus was on the relation between the job duties and the speech, not on whether (as the majority states here) “the employer had an interest in controlling” the speech, or on an auditor’s professional ethics, or alleged whistleblower status. Davis ultimately found some of the communications protected by the First Amendment, while others were not. Id. at 315-16. See also Nixon v. City of Hous., 511 F.3d 494, 498 (5th Cir. 2007) (holding that a police officer’s volunteered media statement critical of the Houston Police Department’s high-speed chase policy nevertheless was made “pursuant to his official duties and during the course of performing his job.”).
The majority’s gratuitous focus on (a) the nature of the speech and (b) the government employer’s “interest in control” muddle Garcetti’s clear threshold line that holds speech undertaken pursuant to an employee’s job duties is categorically unprotected by the First Amendment. The majority assert generally that it “was lawful and appropriate” for the District Attorney’s office in Garcetti to “control” attorney Ceballos’s speech pursuant to his official duties, but this is semantics. Ce-ballos was reporting about police misconduct, specifically, misrepresentations made in a warrant affidavit; his opinion was overruled by his superiors who continued the criminal prosecution. The Supreme Court explicitly did not rule on the merits of Ceballos’s internal memos and held simply that because they were authored pursuant to his official duties, they receive no First Amendment protection. Yet, under the majority’s misplaced analysis, Ce-ballos’s memos might just as easily be characterized as those of a “whistleblower” exposing both police and prosecutorial misconduct. The majority, therefore, have smuggled back into Garcetti’s threshold issue of job duties an evaluation of the speech itself based on the employer’s “interest in controlling” the employee speech, or whistleblower revelations.
Despite my disagreement with the majority’s reasoning, I concur that Anderson stated a claim for First Amendment retaliation. The fact that his boss, Justice Vela, conveyed the incriminating information to Anderson means that the speech “related” to his job duties, but Anderson pleads that he did not write the letters under her supervision or on her orders or even with her knowledge.
A judge’s briefing attorney is paid by the court but is normally accountable to the judge (or judges) for whom he directly works. The relation between a judge and a law clerk is both sensitive and confidential. Further, the scope of the clerk’s duties for “his” judge varies widely within the judiciary, in part because a judge takes advantage of each briefing attorney’s particular experience and expertise. It is hardly unusual for a briefing clerk’s duties to range beyond writing legal memoranda, conducting research on pending cases, and advising on motions before the court. Anderson accordingly became responsible for advising Justice Vela when she inquired of him about the legality of the chief justice’s travel reimbursements. Based on their confidential relationship, Anderson would also have had the duty to inform Justice Vela if he had independently discovered possible malfeasance within the judiciary. Justice Vela in either case shouldered a duty to pursue the allegations, but Anderson’s official work ended with rendering his confidential advice to Justice Vela; the justice asked no more of him. Reporting “up the chain” to Chief Justice Jefferson and the State Commission on Judicial Conduct fell outside Anderson’s employment duties.
For these reasons, it is consistent with Garcetti, Williams, and Davis to conclude that, under the facts pled, Anderson was not employed to investigate and report judicial malfeasance beyond his response to Justice Vela’s inquiry. Further, his complaints “up the chain” reflect protected speech as a citizen on a matter of public concern.
B. Qualified Immunity
On the question of qualified immunity, the majority are rightly concerned that a judicial officer should not be able to shield himself from the consequences of actionable retaliation if the law clearly held that a law clerk was speaking “as a citizen” when he reported the alleged judicial misconduct to the chief justice of the Texas Supreme Court and the State Commission on Judicial Conduct. But in this case, as in all qualified immunity cases, the law must have been “clearly established” at the time of the official’s conduct under factually analogous circumstances. See Brosseau v. Haugen, 543 U.S. 194, 198-201, 125 S.Ct. 596, 599-600, 160 L.Ed.2d 583 (2004) (per curiam). Only the “plainly incompetent” public officials or those who “knowingly violate the law” are denied the protection of qualified immunity. Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034,
The majority correctly note that post-Garcetti and before Chief Justice Valdez acted against Anderson, our court’s decisions distinguished between a public employee’s speech within the chain of command of his office (speech that is constitutionally unprotected) and speech “as a citizen,” which is directed outside to third-party responders like the EEOC (and may be constitutionally protected). See, e.g., Davis, 518 F.3d at 315-16 (holding some complaints within the UT System to be unprotected while those to the EEOC were accorded constitutional protection).
Nevertheless, the issue is more complex than the majority’s analysis acknowledges because, under the Texas Constitution, the Commission includes members of the pub-lie,
I respectfully dissent.
. Contrary to what both Chief Justice Valdez and the majority assert, Anderson’s professional duties as an attorney neither add to nor detract from this analysis. Arguably such considerations might be relevant under the Pickering balance, but Chief Justice Valdez did not challenge the district court’s application of the Pickering balance and thus we have no occasion or need to address that waived argument.
. Garcetti does not accord any special First Amendment shield to publicly employed professionals by virtue of their ethical codes. Nor, as Chief Justice Valdez suggests, are ethical codes a Garceiiz-fashioned sword. He argues that Anderson is a licensed Texas attorney bound by the Texas Disciplinary Rules of Professional Conduct. See Tex. Loc. Gov't Code § 81.072(d); In re Meador, 968 S.W.2d 346, 350 (Tex. 1998). Chief Justice Valdez contends that it is at least arguable that following the Disciplinary Rules is part of a briefing clerk's official duties. If Anderson was obliged by the Rules, and thus his employment duties, to report on alleged misconduct, then his speech was not entitled to constitutional protection.
The district court aptly summarized its rejection of this argument; "In no way does Garcetti permit an employer to take refuge under the broad net of its employees’ professional ethical obligations that happen to implicate speech on matters of public concern, and that apply to all members of the profession regardless of whether they are publicly employed.”
.I assume arguendo, as the Supreme Court has assumed arguendo, that a right may be clearly established by circuit precedent alone even though Supreme Court precedent has not clearly established the right. See Taylor v. Barkes,-U.S. ——, 135 S.Ct. 2042, 2044-45, 192 L.Ed.2d 78 (2015) (per curiam) (twice noting that "[n]o decision of this Court” was similar to Taylor before "[a]ssuming for the sake of argument that a right can be 'clearly established' by circuit precedent despite disagreement in the courts of appeals”); Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093-94, 182 L.Ed.2d 985 (2012) (noting "[t]his Court has never held that there is such a right ['to be free from a retaliatory arrest that is otherwise supported by probable cause']” before ''[a]ssuming arguendo that controlling Court of Appeals’ authority could be a dispositive source of clearly established law”).
. See Tex. Const, art. V, § l-a(2) (stating that the thirteen-member Commission shall be comprised of; one court of appeals justice; one district judge; two members of the state bar who have practiced law for ten consecutive years; five citizens who are not licensed to practice law not public employees; one justice of the peace; one municipal court judge; one county court at law judge; and one constitutional county court judge).
. See id. art. V, § l-a(9) ("A Justice, Judge, Master, or Magistrate may appeal a decision of the review tribunal ['ordering] public censure, retirement or removal’] to the Supreme Court under the substantial evidence rule.”).
Rehearing
ON PETITION FOR REHEARING EN BANC
Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. No member of the panel nor judge in regular active service of the court having requested that the court be polled on Rehearing En Banc (FED R. APP. P. and 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED.
In his Petition for Rehearing En Banc, Defendant-Appellant, Chief Justice Rogelio Valdez of the Texas Thirteenth Court of Appeals, contends that the panel majority improperly relied on cases decided after the challenged speech to define the First Amendment right. It is true that the use of post-conduct cases to establish the existence or contours of a right would run afoul of our qualified-immunity jurisprudence. We, the panel majority, did not, however, rely on post-conduct cases to show that Plaintiff-Appellee Bruce Anderson’s First Amendment right was clearly established at the time of his speech. Rather, we relied on Cutler v. Stephen F. Austin State University
Importantly, the panel in Cutler was itself deciding a qualified immunity question.
Neither did we rely on Cutler to determine what right was already established in 2014. Instead, we discussed Cutler to emphasize that, by 2010, not only was it clearly established that speech like Anderson’s was protected by the First Amendment, but also that a reasonable official in Chief
We also discussed Howell v. Town of Ball
Put differently, we did not use Howell either to define the right or to show that the right was clearly established at the time Anderson spoke. Instead, the discussion of Howell was included only to cabin our holding to rights that were clearly established by 2014: We were just making clear that our opinion does not implicate Lane’s ordinariness rule. Our discussion of that rule had no bearing on deciding Valdez’s qualified-immunity claim. As we went to lengths to explain, the right that Cutler held was clearly established by 2010 decides this appeal.
. 767 F.3d 462, 472-73 (5th Cir. 2014).
. 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006).
. Maj. Op. at 600 n.98.
. Cutler, 767 F.3d at 470-73.
. Id. at 472-73.
. Id.
. Id. at 473.
. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).
. See Hardesty v. Cochran, 621 Fed.Appx. 771, 780 (5th Cir. 2015) (per curiam) (“In Cutler ... we considered whether First Amendment retaliation principles regarding public employees were clearly established prior to 2010. We concluded that numerous Supreme Court and Fifth Circuit decisions gave the defendants clear warning that when a public employee engages in speech outside of his employment duties, and the employee directs his speech externally rather than within the chain of command, the employer may not discipline the employee for engaging in the speech in question. The law was therefore clearly established when the Board Defendants took adverse employment actions against Hardesty in 2011 and 2012.”).
. 827 F.3d 515 (5th Cir. 2016).
. -U.S.-, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014).
. Maj. Op. at 601 ("Accepting Anderson's allegations as true, Cutler decides this appeal.”).
. Maj. Op. at 601.
. See, e.g., Hardesty, 621 Fed.Appx. at 780-81 ("The Supreme Court’s recent decision in Lane ... did not alter First Amendment jurisprudence in any way that would render the currently applicable law not clearly established under these facts.” (citation omitted)).
. Maj. Op. at 600-01.