Carepartners LLC, Et v. Lashway

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CAREPARTNERS LLC, limited 

liability corporation under the

Laws of the State of Washington

doing business as Alderwood

Assisted Living; CAREPARTNERS

MANAGEMENT, limited liability

corporation under the Laws of the

State of Washington doing

business as Alderwood Assisted

Living; JOSEPH KILKELLY and

LAURA KILKELLY, owners of

CarePartners, LLC, individually

and on behalf of their marital

No. 07-35125

community,

Plaintiffs-Appellees,

 D.C. No.

CV-05-01104-RSL

v.

OPINION

PAT LASHWAY, Director of

Residential Care of Services for

the Washington State Department

of Social and Health Services

(DSHS) in her individual capacity;

NANCY TYSON, Boarding Home

Enforcement Officer, for

Residential Care Services and

Aging Adult Services for DSHS,

in her individual capacity;

JOYCE STOCKWELL, an employee of

DSHS in her individual capacity;

ROBERT MCCLINTOCK, Regional



13621

13622 CAREPARTNERS v. LASHWAY

Administrator for DSHS in his 

individual capacity also known as

Bob McClintock; JULIE LORD,

Licensing Field Manager for

Residential Care Services for

DSHS in her individual capacity;

KATHRYN WEBB, Lead Field

Inspector for Residential Care

Services for DSHS in her

individual capacity; MARY CORSO,

formerly the Fire Marshal for the

State of Washington in her

individual capacity; ROGER 

WOODSIDE, Assistant State Fire

Marshal for the State of

Washington in his individual

capacity; ED BORGATTI, Chief

Deputy State Fire Marshal for the

State of Washington in his

individual capacity; MICHAEL

STURGEON, Deputy Fire Marshal

for the State of Washington in his

individual capacity,

Defendants-Appellants.



Appeal from the United States District Court

for the Western District of Washington

Robert S. Lasnik, District Judge, Presiding

Argued and Submitted

June 5, 2008—Seattle, Washington

Filed September 25, 2008

CAREPARTNERS v. LASHWAY 13623

Before: Ferdinand F. Fernandez and Consuelo M. Callahan,

Circuit Judges, and Irma E. Gonzalez, District Judge*

Opinion by Judge Callahan

*The Honorable Irma E. Gonzalez, Chief United States District Judge

for the Southern District of California, sitting by designation.

13626 CAREPARTNERS v. LASHWAY

COUNSEL

Robert M. McKenna, Attorney General for the State of Wash-

ington, Olympia, Washington, D. Thomas Wendel (Argued),

Assistant Attorney General for the State of Washington, on

behalf of defendants-appellants Pat Lashway, et al.

Paul A. Lindenmuth, Esq., Law Offices of Ben F. Barcus &

Associates, P.L.L.C., Tacoma, Washington, on behalf of

plaintiffs-appellees CarePartners, LLC, et al.

OPINION

CALLAHAN, Circuit Judge:

CarePartners, LLC, CarePartners Management, and Joseph

and Laura Kilkelly, as individual owners of the CarePartners

entities (collectively, “CarePartners”), sued several employees

and representatives of the Washington State Department of

Social and Health Services (“DSHS”) and the Washington

State Fire Marshal’s office (“fire marshal”) in their individual

capacities (collectively, the “State employees”) claiming that

the State employees engaged in retaliatory enforcement of

CAREPARTNERS v. LASHWAY 13627

state boarding home laws and regulations against CarePart-

ners, which operated boarding homes in Washington State.

CarePartners alleged that the State employees retaliated

against its facilities, including revocation of one facility’s

license, in response to Joseph Kilkelly’s (“Kilkelly”) constitu-

tionally protected speech and petition activities; namely, his

critical public speech about DSHS and its interpretations of

certain regulations, his lobbying activities in connection with

seeking a license from DSHS, and his filing of an administra-

tive appeal as to one of DSHS’s regulatory decisions. In this

interlocutory appeal, the State employees appeal the district

court’s denial of their motion for summary judgment on their

defense of qualified immunity. Viewing the facts in a light

most favorable to CarePartners, and based on circuit prece-

dent, we hold that the State employees are not entitled to qual-

ified immunity. Accordingly, we affirm the district court’s

denial of summary judgment.

I. Factual Background

A. Regulatory background

The State of Washington licenses and regulates boarding

homes (i.e., assisted living facilities for the elderly). Wash.

Rev. Code §§ 18.20.020(1), 18.20.030. The State has insti-

tuted comprehensive regulations covering various aspects of

boarding home construction and operation. See Wash. Admin.

Code §§ 388-78A-2010-2050. These rules are generally

enforced by DSHS and its Resident Care Services department

(“RCS”), but fire protection standards are enforced by the

Washington State Patrol through the director of fire protection

(i.e., the fire marshal’s office). Wash. Rev. Code

§§ 18.20.110, 18.20.130.

In 1995, the state building code council adopted a licensed

care facility code (“LC Code”) that requires automatic fire

sprinklers if the facility has more than sixteen residents or has

more than two residents who are non-ambulatory. Wash.

13628 CAREPARTNERS v. LASHWAY

Admin. Code § 51-40-0313.8.2.1 (1998). In response to a

1998 fire at a boarding home, which killed eight residents, the

Washington Legislature enacted a program to subsidize the

cost of retrofitting older facilities with fire sprinklers. As of

1999, licensed boarding homes could not accept and retain

semi- or non-ambulatory residents unless “the boarding home

[was] approved by the Washington state director of fire pro-

tection to care for semi-ambulatory or nonambulatory resi-

dents.” Wash. Admin. Code § 388-78A-240(3)(a) (2002). In

December 2001, Pat Lashway, as DSHS Director of RCS,

sent letters to all boarding home operators indicating what

conditions their facilities would have to meet to serve semi-

and non-ambulatory residents.1

B. Kilkelly’s acts and enforcement by the State

employees

CarePartners operated three boarding homes in the State of

Washington: Meridian Hills (“Meridian”), Alderwood

Assisted Living (“Alderwood”) and Wenatchee Assisted Liv-

ing (“Wenatchee”). Alderwood and Wenatchee did not have

sprinkler systems in place at the time of enforcement. This

lawsuit is based on a series of acts through which Kilkelly

exercised his rights of speech and petition, which CarePart-

ners alleges led to the State employees’ retaliatory enforce-

ment with respect to the Alderwood and Wenatchee facilities.

1

In 2002, the state fire marshal adopted the 1997 Uniform Fire Code,

Wash. Admin. Code § 212-12-030(4) (2003), which mandates: “Existing

licensed occupancies previously approved by the state fire marshal as in

conformance with the standards then in effect shall have their existing use

or occupancy continued, provided such continued use is not dangerous to

life and is acceptable to the local fire and building officials having juris-

diction.” Wash. Admin. Code § 212-12-010(4)(c) (2003).

CAREPARTNERS v. LASHWAY 13629

1. Kilkelly’s administrative appeal of the fine against

Meridian

In 2002, the Meridian facility received an annual survey by

RCS. Dissatisfied with that survey and an associated fine of

$300, Kilkelly and CarePartners filed an administrative appeal

in early 2003 to challenge the conclusions and results of the

survey. CarePartners was critical of DSHS’s assessment of

the Meridian facility. Administrative hearings took place in

January and February of 2003, and the State of Washington

Department of Social and Health Services Board of Appeals

eventually affirmed most of the administrative decision in

DSHS’s favor.

2. Kilkelly’s lobbying activity

In early February 2003, CarePartners entered into a letter

agreement to lease a boarding home in Lakewood, Washing-

ton, from owners who had allowed their license to lapse. The

lease was contingent on CarePartners’s acquisition of a

license from DSHS. Kilkelly engaged in an administrative let-

ter campaign with DSHS, and specifically defendants Lash-

way and Nancy Tyson, over whether to treat CarePartners’s

application for a license as one related to an existing facility

or as an initial facility application, in other words “grandfa-

thering” the facility in under the old code. Concurrently, Kil-

kelly began lobbying state politicians for assistance in trying

to acquire a license on favorable terms so that CarePartners

could meet its stated goal of serving low to medium income

residents. He contacted several state senators and met with a

state representative’s aide to discuss his licensing issue and to

criticize DSHS. For example, an e-mail to state senators was

entitled “Example of DSHS inflexibility in applying the exist-

ing rules — choosing control over whats [sic] best for public

policy[.]”2

2

Kilkelly’s affidavit also asserts that when one of CarePartners’s facili-

ties was shut down by DSHS and the leasehold transferred to another les-

13630 CAREPARTNERS v. LASHWAY

3. The State employees’ enforcement action against

Wenatchee and Alderwood

On February 2, 2003, a deputy fire marshal inspected

Wenatchee and cited it for having too many semi- and non-

ambulatory residents in a facility without fire sprinklers. Kil-

kelly contested those violations by letter. In February 2003,

RCS conducted an inspection of Alderwood and found defi-

ciencies related to the number of semi- and non-ambulatory

residents present in the facility.

A June 2, 2003 e-mail indicates that DSHS was “planning

to take action against Wenatchee” (and possibly Alderwood),

and that DSHS wanted to get all concerned “ ‘on board’ and

‘all our ducks alined’ [sic].” However, internal e-mails sent

between June 3, 2003 and June 5, 2003 indicate that the agen-

cies had not yet reached agreement as to how the CarePartners

facilities were to be treated under the relevant statutes and

regulations with respect to fire sprinkler system requirements

and ambulatory issues. One e-mail referred to the issue as “a

curve ball.” Another read, in part: “OK guys - I found an ‘Ah

Shit’ in the pile.”

Unannounced follow-up inspections at Alderwood and

Wenatchee were conducted on June 23 and 24, 2003, noting

several violations. On June 27, 2003, DSHS imposed immedi-

ate conditions on Wenatchee’s and Alderwood’s boarding

home licenses. DSHS’s order required both facilities to: (1)

discharge all but two semi-ambulatory residents within 30

days; (2) hire staff within 24 hours who would be dedicated

to conducting “fire watches 24 hours, 7 days per week”; (3)

contact the fire marshal within 24 hours to discuss evacuation

plans; and (4) train staff and residents on evacuation plans

see, DSHS accommodated the transfer of the license as an existing license,

not an initial application for a license. CarePartners contends that this is

contrary to how his application for the Lakewood facility was treated by

DSHS.

CAREPARTNERS v. LASHWAY 13631

within seven days. On July 3, 2003, Alderwood appealed the

decision to the Office of Administrative Hearings.

In or around early July 2003, CarePartners’s attorney,

Robin Dale, contacted the Attorney General’s office and

spoke with Assistant Attorney General Cobb, who represented

DSHS and Lashway. In Dale’s affidavit, she noted that Cobb

“gave [her] the distinct impression that Mr. Kilkelly was not

one of the Department’s favorite people,” and that “Mr. Kil-

kelly was ‘known’ to the department,” a comment Dale

remarked was delivered with “negative connotations.” Dale

further declared that in the following days she called Assistant

Attorney General Hoover, who was purportedly involved with

Kilkelly’s licencing issues. According to Dale, Hoover indi-

cated that “ ‘Pat (Lashway) is quickly losing patience with Joe

[Kilkelly].”

Dale arranged meetings on July 10 and 11, 2003 between

Kilkelly, his attorney of record, RCS personnel, and the

Assistant Attorney General to discuss the Wenatchee and

Alderwood facilities. Kilkelly presented his plans of correc-

tion for both facilities on July 10th and 11th. According to

Kilkelly’s affidavit, this included installation of a sprinkler

system at Alderwood. He had concluded “that the meeting

had been very positive and that [they] were working towards

a resolution” that would prevent Alderwood from closing.

Notably, the record indicates that during this entire period

Kilkelly and his attorney were trying to contact DSHS and

fire marshal officials to negotiate or discuss installation of fire

sprinklers, but that those officials either refused to talk or

would not engage in talks. For example, one internal Wash-

ington State Patrol e-mail, dated July 3, 2003, stated:

I took a call from Mr. Kilkelly . . . . While the call

went on for awhile [with me dancing like a trained

bear to keep from saying anything], his main point

was that he would be more than willing to negotiate

13632 CAREPARTNERS v. LASHWAY

a time frame within which he would guarantee the

installation of a sprinkler system[s]. . . . He did

spend some time letting me know how absolutely

rotten he and his staff were treated by Mike . . .

which I apologized for . . . .

Another internal Washington State Patrol e-mail, dated July

14, 2003, stated:

[Kilkelly’s attorney] just short of begged for a return

call. He can’t get anyone from DSHS to call him

back...... [sic] same story I got from Kilkelly. These

folks are MORE than ready to install a sprinkler sys-

tem, and they can’t seem to get anyone to talk about

that. . . . I’d hate like hell to see the system bust

someone who is indicating they want to “make it

right” . . . .

On July 11, 2003, Lashway summarily suspended Alder-

wood’s license, stating that the “residents are in imminent

threat of harm.” The DSHS order also permanently revoked

Alderwood’s license and halted admissions of new residents

in that facility. That same day, a minority interest owner in

CarePartners, Tom Tennent, contacted the news media and

began generating negative news media about DSHS.

Alderwood immediately filed an administrative appeal of

the order and sought an immediate stay of the order in Wash-

ington Superior Court. The Superior Court granted a tempo-

rary stay of the suspension, but that stay was eventually lifted

by the Superior Court and the Washington Court of Appeals.

While the stay was in place, in July 2003, Kilkelly and his

attorneys met with representatives of DSHS, the fire mar-

shal’s office and Assistant Attorney General Hoover. Accord-

ing to Dale’s and Kilkelly’s affidavits, the State was unwilling

to negotiate unless Kilkelly agreed to new conditions, includ-

CAREPARTNERS v. LASHWAY 13633

ing the allegedly cost-prohibitive condition of hiring fire-

fighters as 24-hour fire watchers.

The administrative appeal process continued while Care-

Partners pursued the present case in the district court and con-

cluded after the district court denied the State employees’

motion for summary judgment on qualified immunity in this

case, which is discussed below. CarePartners withdrew its

administrative appeal in May 2007, and the Superior Court

entered an order dismissing that appeal with prejudice and

deeming DSHS’s licensing actions final.

C. District court proceedings

On June 17, 2005, CarePartners filed a complaint in district

court for damages claiming violations of its First Amendment

rights to freedom of speech and to petition for a redress of

grievances (based on retaliation), violation of due process,

and tortious interference with business relationships. After

limited discovery, the defendants moved for summary judg-

ment on the grounds that CarePartners’s claims were barred

by the Rooker-Feldman doctrine, and that they were entitled

to qualified immunity. The district court held that: (1) Care-

Partners’s claims were not barred by the Rooker-Feldman

doctrine; (2) CarePartners’s procedural and substantive due

process claims failed as a matter of law; and (3) the defen-

dants were not entitled to qualified immunity on the First

Amendment retaliation claims. In denying the State employ-

ees’ motion for summary judgment on their qualified immu-

nity, the district court stated that it would entertain subsequent

motions for summary judgment after the completion of dis-

covery.

The State employees filed this appeal, challenging only the

district court’s decision denying summary judgment on their

claim of qualified immunity in connection with the speech

and petition-based retaliation claims.

13634 CAREPARTNERS v. LASHWAY

II. Jurisdiction, Scope of Review, and Standard of

Review

We have jurisdiction over this interlocutory appeal taken

from the denial of the State employees’ motion for summary

judgment on their defense of qualified immunity. See Mitchell

v. Forsyth, 472 U.S. 511, 530 (1985); Kennedy v. City of

Ridgefield, 439 F.3d 1055, 1059 (9th Cir. 2006) (“As a gen-

eral rule, interlocutory appeals from determinations of quali-

fied immunity are permissible.”). The scope of our review,

however, is limited. Specifically, although we may review

whether the State employees violated clearly established law

based on undisputed facts, we may not consider questions of

“ ‘evidence sufficiency,’ i.e., which facts a party may, or may

not, be able to prove at trial.” Johnson v. Jones, 515 U.S. 304,

313, 319-20 (1995);3 see also KRL v. Estate of Moore, 512

F.3d 1184, 1188-89 (9th Cir. 2008); Knox v. Sw. Airlines, 124

F.3d 1103, 1107 (9th Cir. 1997) (“[W]e have jurisdiction over

an interlocutory appeal from the denial of qualified immunity

where the appeal focuses on whether the defendants violated

a clearly established law given the undisputed facts, while we

do not have jurisdiction over an interlocutory appeal that

focuses on whether there is a genuine dispute about the under-

lying facts.”).4

3

The Supreme Court recently announced that although a court in the

typical qualified immunity case will adopt the plaintiff’s version of the

facts at the summary judgment stage, the court need not adopt the plain-

tiff’s alleged facts that are “utterly discredited” by the record. See Scott v.

Harris, 127 S. Ct. 1769, 1775-76 (2007) (“When opposing parties tell two

different stories, one of which is blatantly contradicted by the record, so

that no reasonable jury could believe it, a court should not adopt that ver-

sion of the facts for purposes of ruling on a motion for summary judg-

ment.”). Here, however, the State employees have acknowledged the lack

of any substantial dispute on the material facts presented by CarePartners,

and the concerns raised in Scott are not germane.

4

Despite our and the Supreme Court’s previous characterizations of

what an appellate court may review in the context of an interlocutory

appeal of a district court’s denial of qualified immunity as one of “juris-

diction,” we use the label “scope of review” here to avoid any confusion

inherent to the word “jurisdiction.” See Arbaugh v. Y & H Corp., 546 U.S.

500, 510-11 (2006).

CAREPARTNERS v. LASHWAY 13635

We review de novo the district court’s denial of a motion

for summary judgment based on qualified immunity. Ken-

nedy, 439 F.3d at 1059; Lee v. Gregory, 363 F.3d 931, 932

(9th Cir. 2004). Regarding possible factual disputes, we

assume that the version of the material facts asserted by the

non-moving party—here, CarePartners—is correct. KRL, 512

F.3d at 1189; see Kennedy, 439 F.3d at 1059-60.

III. Discussion

In analyzing whether a public official is entitled to quali-

fied immunity, we apply the two-part test from Saucier v.

Katz, 533 U.S. 194 (2001).5 First, the court asks whether the

facts alleged, taken in the light most favorable to the party

asserting the injury, show that the official’s conduct violated

a constitutional right. Inouye v. Kemna, 504 F.3d 705, 712

(9th Cir. 2007) (citing Saucier, 533 U.S. at 201). Second, if

there is a constitutional violation, the court asks whether the

right was clearly established at the time the official acted. Id.

“To reject a defense of qualified immunity, we must find that

‘the contours of the right [are] sufficiently clear that a reason-

able official would understand that what he is doing violates

the right.’ ” Id. (quoting Saucier, 533 U.S. at 202). If the right

was not clearly established at the time of the violation, the

official is entitled to qualified immunity.6 Id.

5

We note that Pearson v. Callahan, 128 S. Ct. 1702 (2008) (No. 07-

751), is pending before the United States Supreme Court. In Pearson, the

Court directed the parties to brief and argue the question: “Whether the

Court’s decision in Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150

L. Ed.2d 272 (2001) should be overruled?”

6

We have previously expressed the qualified immunity test as both a

two-step test and a three-step test. Inouye, 504 F.3d at 712 n.6 (citing

Skoog v. County of Clackamas, 469 F.3d 1221, 1229 (9th Cir. 2006) (char-

acterizing the third step as an inquiry into the reasonableness of the offi-

cer’s mistake)). As the Inouye court noted, however, the third step from

Skoog appears to be subsumed in the second step as stated in our other

decisions and in Saucier. Id. We use the two-step iteration of the test.

13636 CAREPARTNERS v. LASHWAY

A. Constitutional violation

We must first answer the following question: “Taken in the

light most favorable to the party asserting the injury, do the

facts alleged show the [officials’] conduct violated a constitu-

tional right?” Saucier, 533 U.S. at 201.

1. Retaliation based on Kilkelly’s First Amendment

activity

The district court identified five acts that Kilkelly alleged

led to retaliation by the State employees:

(1) Kilkelly’s pursuit of an administrative appeal of

the fine levied against Meridian Hills Assisted Liv-

ing; (2) Kilkelly’s legislative lobbying efforts to

acquire a license for the boarding home facility in

Lakewood, Washington; (3) Kilkelly’s advocacy

related to his interpretation of the building codes

which would have permitted the Alderwood facility

to be grandfathered out of the sprinkler installation

requirements; (4) Kilkelly’s statement to the press

after the license revocation on July 11, 2003; and (5)

Kilkelly’s pursuit of both administrative review and

a court ordered stay of the summary revocation of

his license.

These alleged activities fall within the First Amendment’s

protection of the rights to free speech and to petition for a

redress of grievances. Kilkelly’s lobbying efforts, advocacy

regarding interpretation of the building codes, and his state-

ments to the press are protected by his right to free speech.

[1] In recognizing one’s protected interest in commenting

on government officials’ actions, we have stated that “[i]t is

clear that ‘[s]tate action designed to retaliate against and chill

political expression strikes at the heart of the First Amend-

ment.’ ” Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310,

CAREPARTNERS v. LASHWAY 13637

1314 (9th Cir. 1989) (citation omitted); see also FCC v.

League of Women Voters of Cal., 468 U.S. 364, 405 (1984)

(Rehnquist, C.J., dissenting) (noting that the right to lobby is

constitutionally protected). Kilkelly’s alleged acts of seeking

administrative review and a court-ordered stay of the revoca-

tion of CarePartners’s license are protected by his right to

petition the government. See BE & K Constr. Co. v. NLRB,

536 U.S. 516, 525 (2002) (stating that the right to petition

extends to all departments of government and that the right of

access to the courts is but one aspect of the right of petition);

Soranno’s Gasco, 874 F.2d at 1314 (“The right of access to

the courts is subsumed under the first amendment right to

petition the government for redress of grievances.”).

[2] In Soranno’s Gasco, we set forth the standard for evalu-

ating whether a regulated entity has established a claim of

retaliation based on the exercise of free speech and petition

rights. 874 F.2d at 1314-15. A “plaintiff alleging retaliation

for the exercise of constitutionally protected rights must ini-

tially show that the protected conduct was a ‘substantial’ or

‘motivating’ factor in the defendant’s decision.” Id. at 1314

(citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274, 287 (1977)). If the plaintiff makes this initial show-

ing, the “burden shifts to the defendant to establish that it

would have reached the same decision even in the absence of

the protected conduct.” Id. To meet this burden, a defendant

must show by a preponderance of the evidence that it would

have reached the same decision; it is insufficient to show

merely that it could have reached the same decision. Id. at 1315.7

7

The State employees would also have us impose a requirement on

CarePartners to plead and prove an “absence of probable cause” with

respect to their enforcement decisions, relying on Hartman v. Moore, 547

U.S. 250 (2006). We decline to do so. In Hartman, the Court held that a

plaintiff in a retaliatory-prosecution action must plead and show the

absence of probable cause for pressing the underlying criminal charges,

and based its holding on the unique need to “bridge” a causation gap

between the non-prosecuting government agent’s retaliatory animus and

13638 CAREPARTNERS v. LASHWAY

Because our decision in Soranno’s Gasco directs our analy-

sis here, we review the facts of that case in some detail. The

plaintiffs in Soranno’s Gasco were sellers and distributors of

petroleum products that operated under certain bulk plant per-

mits. Soranno, as owner of Sorrano’s Gasco (“Gasco”), pub-

licly challenged certain new regulations promulgated by the

county and the air pollution district, speaking out at County

Board of Supervisors meetings and initiating litigation to

challenge the regulations. Subsequently, the air pollution dis-

trict demanded certain documentation from Soranno, which

Sorrano refused to provide on the grounds that the demand

was an improper attempt at discovery related to a civil penalty

action the county had filed against Gasco. The air pollution

district then exercised its statutory authority and suspended

Gasco’s bulk plant permits, and a pollution control officer cir-

culated a letter to Gasco’s clients informing them of Gasco’s

permit suspension and of possible adverse impact on their

own businesses.

Sorrano and Gasco brought an action under 42 U.S.C.

§ 1983 against the county, the air pollution district, and sev-

eral officials on the grounds that the defendants suspended

Gasco’s petroleum bulk plant permits and discouraged its cus-

tomers from doing business with Gasco in retaliation for

Soranno’s exercise of constitutionally protected speech and

petition rights. We vacated the grant of summary judgment

and held that: (1) the plaintiffs had protected rights in com-

the prosecutor’s independent decision, which is accorded presumptive reg-

ularity. Id. at 252, 263-66. Hartman does not apply to this case because

the Court made a clear distinction between retaliatory-prosecution actions

to which the additional pleading and proof requirements apply, and “ordi-

nary” retaliation actions to which the requirements do not apply (i.e.,

where there is no independent prosecutorial action). Id. at 259-62; accord

Skoog, 469 F.3d at 1233-34 (recognizing that Hartman’s absence of prob-

able cause element applies to “a particular subcategory of retaliation

claims: retaliatory prosecution claims”). This case involves an ordinary

retaliation action and, therefore, Hartman is inapplicable.

CAREPARTNERS v. LASHWAY 13639

menting on the conduct of government officials and in peti-

tioning the government for redress of grievances, and (2)

Soranno’s protected expression was a substantial factor in the

decision to suspend Gasco’s permits. Id. at 1314-15. We

based our finding that Sorrano’s protected expression was a

substantial factor in the air pollution district’s decision on the

timing of the district’s suspension action and a phone call in

which the pollution control officer intimated to Sorrano that

he would “somehow get even” with Soranno for generating

embarrassing publicity about the challenged regulations. Id. at

1315-16.

[3] The present case closely resembles Soranno’s Gasco.

As discussed above, Kilkelly engaged in protected First

Amendment activity by way of his petition for administrative

review of agency decisions, lobbying efforts, advocacy

related to interpretation of the building codes, and public

statements criticizing the State employees. Assuming that

CarePartners’s version of the material facts is correct, as we

must in the context of an interlocutory appeal of a qualified

immunity decision, CarePartners has met its initial burden of

showing that its speech was a substantial or motivating factor

behind the State employees’ decision to take the actions

described above. First, the timing of the State employees’

investigation of CarePartners and the summary suspension

and revocation of its license were suspiciously close in time

to the administrative hearing on the Meridian facility and Kil-

kelly’s lobbying efforts regarding the Lakewood facility. See

Soranno’s Gasco, 874 F.2d at 1316 (recognizing that the

suspicious timing and nature of the permit suspension contrib-

uted to the finding that Soranno’s protected expression was a

substantial factor in the suspension decision). Second, the

existence of a retaliatory intent is supported by Dale’s decla-

ration indicating that DSHS officials were “quickly losing

patience” with Kilkelly, and that the Assistant Attorney Gen-

eral told Dale that Kilkelly was “known to the department.”

Third, the record, based on limited discovery conducted thus

far, contains e-mails that suggest DSHS was planning to take

13640 CAREPARTNERS v. LASHWAY

action against Alderwood and Wenatchee before it conducted

its follow-up inspections. Finally, the record indicates that

DSHS may have been deliberately refusing to communicate

with Kilkelly despite his expressed willingness to install a

sprinkler system. In the context of an interlocutory appeal on

qualified immunity, these facts indicate that CarePartners has

demonstrated that Kilkelly’s protected expression may well

have been a substantial factor in the State employees’ aggres-

sive enforcement decisions.

The district court properly declined to determine whether

the State would have made the decisions it did in the absence

of Kilkelly’s protected speech and petition activity because

issues of fact remained with regard to the State employees’

motivations. Id. at 1316 (“[T]he potential section 1983 liabil-

ity depends upon the defendants’ motivation. This is a genu-

ine issue of material fact and is therefore inappropriate for

summary judgment.”) (citation omitted). The district court

provided, however, that once the parties conducted additional

discovery they could file new motions for summary judgment.

We may not make factual findings regarding the State

employees’ motivations, and thus leave this question for fur-

ther proceedings in the district court.8

8

This conclusion is not altered by the State employees’ thinly supported

request that we accord some type of preclusive effect to an order of the

Superior Court of Washington dismissing CarePartners’s administrative

appeal with prejudice. They argue that the dismissal of that appeal demon-

strates that the validity of the licensing actions is a “verity,” and thus the

enforcement action would have occurred despite any retaliatory motive.

The argument is not persuasive. First, the administrative appeal was not

decided on the merits and the claim was not actually litigated, as the court

dismissed the appeal with prejudice because CarePartners withdrew its

appeal. See Collins v. D.R. Horton, Inc., 505 F.3d 874, 880 & n.5 (9th Cir.

2007). Second, the district court refused to consider the State employees’

“res judicata” argument because it was first raised in a reply brief and

CarePartners was unable to respond to the argument. We will not ordinar-

ily consider an issue raised for the first time on appeal, and decline to do

so here. See Int’l Union of Bricklayers & Allied Craftsmen Local Union

No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985).

CAREPARTNERS v. LASHWAY 13641

2. Importation of the public concern requirement and

the Pickering Balancing Test

The State employees assert that two criteria applicable to

the evaluation of a public employee’s speech-based retaliation

claims should apply generally to First Amendment retaliation

claims by regulated entities: first, that the speech at issue

address a matter of public concern; and, second, that even if

that speech addresses a matter of public concern it survive

what is known as the Pickering balancing test. They rely pri-

marily on Tennessee Secondary School Athletic Association v.

Brentwood Academy, 127 S. Ct. 2489 (2007), which they

argue held that the public concern requirement and Pickering

balancing test apply generally to the regulated entity context.

In Brentwood Academy, the Court held that a state-sponsored

high school athletic league could impose conditions on its

member schools’ coaches’ speech—aimed at “hard-sell

recruiting” of middle school children to high school teams—

that were necessary to managing an efficient and effective

league. Id. at 2495. As discussed below, however, Brentwood

Academy is distinguishable. Moreover, the rationales underly-

ing the “public concern” requirement and the Pickering bal-

ancing test in the public employee context do not support the

extension of this analytical framework to the regulated entity

context.

[4] In the specific context of speech-based retaliation

claims made by public employees, the Supreme Court has

held that the “First Amendment’s guarantee of freedom of

speech protects government employees from termination

because of their speech on matters of public concern.” Bd. of

County Comm’rs v. Umbehr, 518 U.S. 668, 675 (1996) (citing

Connick v. Meyers, 461 U.S. 138, 146 (1983)); see also Gar-

cetti v. Ceballos, 547 U.S. 410, 417 (2006). Analysis of a

government employee’s speech-based retaliation claim is sim-

ilar to speech-based retaliation claims by regulated entities—

the employee must initially show that the conduct at issue was

protected and that it was a substantial or motivating factor for

13642 CAREPARTNERS v. LASHWAY

the adverse action, with the burden then shifting to the gov-

ernment to demonstrate that it would have taken the same

action in the absence of the protected conduct—but adds two

additional criteria. See Umbehr, 518 U.S. at 675 (citing Mt.

Healthy, 429 U.S. at 287); Garcetti, 547 U.S. at 418. First, the

public employee’s speech at issue must be on a matter of pub-

lic concern, i.e., speech made as a private citizen “fairly con-

sidered as relating to any matter of political, social, or other

concern to the community,” as opposed to speech by an

employee about matters of personal interest. See Connick, 461

U.S. at 146-48; see also Umbehr, 518 U.S. at 675-76. Second,

even an adverse action based on protected speech “may be

justified when legitimate countervailing government interests

are sufficiently strong.” Umbehr, 518 U.S. at 675.

[5] This latter aspect, the “Pickering balancing test,” recog-

nizes that First Amendment rights of a government employee

in retaliation claims depend on the “ ‘balance between the

interests of the [employee], as a citizen, in commenting upon

matters of public concern and the interest of the State, as an

employer, in promoting the efficiency of the public services

it performs through its employees.’ ” Umbehr, 518 U.S. at

676 (alteration in original) (quoting Pickering v. Bd. of Educ.,

391 U.S. 563, 568 (1968)); see also Garcetti, 547 U.S. at 418

(“A government entity has broader discretion to restrict

speech when it acts in its role as employer, but the restrictions

it imposes must be directed at speech that has some potential

to affect the entity’s operations.”).9

[6] The additional criteria for a government employee’s

retaliation claim based on First Amendment activity do not

categorically apply to a claim by a regulated entity. The his-

tory, rationale, and limited nature of the public concern

requirement and Pickering balancing test, as well as existing

9

In Umbehr, the Supreme Court extended this analytical framework to

cover independent government contractors. 518 U.S. at 677, 685; accord

Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 923 (9th Cir. 2004).

CAREPARTNERS v. LASHWAY 13643

circuit precedent, do not support their application in the regu-

lated entity context. In Connick, the Supreme Court discussed

the public concern requirement with specific and limited ref-

erence to the field of public employee speech and explained

that it was based on the need to balance government employ-

ees’ speech rights with the government’s needs as an

employer. 461 U.S. at 142-44; see also Thaddeus-X v. Blatter,

175 F.3d 378, 390 (6th Cir. 1999) (en banc) (per curiam) (not-

ing, in discussing the origins of the public concern test, that

“[t]he story of the public concern limitation is a story about

the free speech of public employees”).10

[7] Moreover, we have already prescribed the framework

for analyzing speech and petition-based retaliation claims by

regulated entities, and that framework does not include the

question of whether the speech was on a matter of public con-

cern or use of the Pickering balancing test. See Soranno’s

Gasco, 874 F.2d at 1314-15.11 Although the Soranno’s Gasco

court did not specifically address the public concern require-

ment or the Pickering balancing test, it surely was apprised,

in 1989, of the approach that the Supreme Court had adopted

in its public employee speech retaliation cases. See, e.g., Con-

nick, 461 U.S. 138 (decided in 1983); Pickering, 391 U.S. 563

(decided in 1968).

10

We note that the public concern requirement and the Pickering balanc-

ing test have their genesis in the Supreme Court’s attempts to expand, not

reduce, the public employees’ speech rights. See Connick, 461 U.S. at

143-46. These criteria represent the culmination of years of decisions that

whittled away the “unchallenged dogma . . . that a public employee had

no right to object to conditions placed upon the terms of employment—

including those which restricted the exercise of constitutional rights.” Id.

at 143. The Court’s intent was to safeguard public employees’ rights to

speak on matters of public concern.

11

Similarly, in Beechwood Restorative Care Ctr. v. Leeds, 436 F.3d

147, 151-52 (2d Cir. 2006), the Second Circuit discussed the standards to

be used to evaluate a nursing home’s claim that state and federal regula-

tors retaliated against it because of its complaints, protests, and lawsuits

regarding regulations, but did not mention the public concern requirement

or the Pickering balancing test.

13644 CAREPARTNERS v. LASHWAY

The rationales for the public concern requirement as well

as the Pickering balancing test weigh against their application

to retaliation claims by regulated entities. In discussing the

public concern test, the Third Circuit stated:

The “public concern” test was formulated by the

Supreme Court in addressing speech restrictions

placed by governmental entities on their own public

employees. Regulation of public employee speech

presented two features not present in other forms of

speech control. First, acting as an employer, the gov-

ernment has some authority to impose conditions

upon those who seek jobs, including conditions that

limit the exercise of otherwise available constitu-

tional rights. Second, “[w]hen someone who is paid

a salary so that she will contribute to an agency’s

effective operation begins to do or say things that

detract from the agency’s effective operation, the

government employer must have some power to

restrain her.”

Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 283 (3d Cir.

2004) (citations omitted).

[8] The Fifth Circuit has similarly noted that, “[i]n general,

courts have invoked two reasons for applying the [public con-

cern requirement and the Pickering balancing] test outside of

the employment context: [first,] that the relationship involved

was analogous to an employer-employee relationship[; and,

second,] that the principle underlying Connick warranted its

application,” i.e., the need to balance between the interests of

the employee, as citizen, in commenting upon matters of pub-

lic concern and the interest of the State, as an employer, in

promoting the efficiency of the public services it performs

through its employees. See Blackburn v. City of Marshall, 42

F.3d 925, 932-34 (5th Cir. 1995) (collecting cases where pub-

lic concern requirement was extended to cover relationships

analogous to government employer-employee relationship).

CAREPARTNERS v. LASHWAY 13645

Here, the relationship between CarePartners, a licensee, and

the State of Washington does not resemble an employment

relationship, and CarePartners’s grievances do not resemble

ordinary workplace grievances.12

[9] Other circuits have also cautioned against extending the

criteria beyond the public employment context, noting the ori-

gins and limited nature of the public concern requirement and

the Pickering balancing test. See Jenkins v. Rock Hill Local

Sch. Dist., 513 F.3d 580, 586-87 (6th Cir. 2008) (alleged

retaliation by school board against student for mother’s

speech); Van Deelen v. Johnson, 497 F.3d 1151, 1156-57

(10th Cir. 2007) (declining to apply criteria to alleged retalia-

tion against taxpayer for bringing tax assessment challenges);

Campagna v. Mass. Dep’t of Envtl. Prot., 334 F.3d 150, 154-

55 (1st Cir. 2003) (declining to apply criteria to alleged retali-

ation against state employee, who also was a private certified

septic system inspector, for filing previous lawsuit against

county); Friedl v. City of New York, 210 F.3d 79, 87 (2d Cir.

2000) (declining to apply criteria to alleged retaliation against

prisoner for having sought public assistance benefits); Vickery

v. Jones, 100 F.3d 1334, 1346 n.1 (7th Cir. 1996) (declining

to apply criteria to alleged retaliation by Illinois State officials

and Illinois Republican Party against applicant for appoint-

ment to a “temporary highway maintainer” position because

of political affiliation). We find our colleagues’ reasoning

persuasive and accordingly do not apply the public concern

requirement and Pickering balancing test to CarePartners’s

retaliation claim.

[10] Finally, we distinguish Brentwood Academy, 127

S. Ct. 2489, upon which the State employees rely for their

12

In contrast, in Havekost v. U.S. Department of the Navy, 925 F.2d 316,

317-18 (9th Cir. 1991), we noted that the Connick/Pickering standards

were not directly on point, but applied public employee standards to the

retaliation claim of a grocery bagger licensed to work in a military facility

where the speech at issue was “nothing more than a workplace grievance.”

13646 CAREPARTNERS v. LASHWAY

requested extension of the law governing First Amendment

retaliation claims by public employees. Brentwood Academy

involved the regulation of speech rights that the high schools

at issue contracted away in exchange for participation in a pri-

vate athletic league deemed by the Court to be a state actor.

Where an entity specifically contracts with a government

entity for a benefit which directly flows from some limitation

of speech, a challenge to the contracted-for limitation raises

concerns similar to the public employee context: whether the

speech is on a matter of public concern, and whether the gov-

ernment has an employer-like interest in the controversy.

Those concerns are not present here. Nothing in Brentwood

Academy suggests that these additional criteria should be

applied to all entities that are to a greater or lesser extent regu-

lated by a government. Rather, consistent with our colleagues

from other circuits and with the shifting of burdens that

occurs once a showing of protected activity has been made,

we hold that the State employees have failed to show that

their relationship with CarePartners is sufficiently analogous

to the public employee context to allow the imposition of the

additional criteria. We conclude that Brentwood Academy

does not compel this court to extend the public employee

retaliation analysis beyond its current moorings in this circuit.

B. Clearly established rights

[11] Having established a constitutional violation based on

the facts alleged by CarePartners, we next turn to the question

of whether the First Amendment rights violated were “clearly

established” at the time of the alleged violations, i.e., “[t]he

contours of the right must be sufficiently clear that a reason-

able official would understand that what he is doing violates

that right.” Saucier, 533 U.S. at 202 (citation and internal

quotation marks omitted). “This inquiry . . . must be

undertaken in light of the specific context of the case, not as

a broad general proposition.” Id. at 201. However, the injured

party “need not establish that the Defendants’ ‘behavior had

been previously declared unconstitutional.’ ” Hydrick v.

CAREPARTNERS v. LASHWAY 13647

Hunter, 500 F.3d 978, 989 (9th Cir. 2007) (quoting Blueford

v. Prunty, 108 F.3d 251, 254 (9th Cir. 1997)). The dispositive

inquiry is “whether it would be clear to a reasonable [official]

that his conduct was unlawful in the situation he confronted.”

Saucier, 533 U.S. at 202.

[12] As the district court properly concluded, the relevant

law was clearly established at the time of the alleged viola-

tion. In Soranno’s Gasco, decided in 1989, we held that it is

unlawful for the government to deliberately retaliate against

a citizen for exercising his right to comment on (and publicly

criticize) government officials’ actions and his right to access

the courts and administrative appeals process for redress of

grievances. 874 F.2d at 1314-15 (citing Mt. Healthy, 429 U.S.

274). As discussed above, the facts in Soranno’s Gasco

closely resemble the facts in the present appeal—both cases

involve a regulated entity claiming intentional retaliation by

government officials because of the exercise of speech and

petition rights. Notably, in discussing a qualified immunity

defense, we stated that “[i]t could hardly be disputed that at

the time of the permit suspension an individual had a clearly

established right to be free of intentional retaliation by gov-

ernment officials based upon that individual’s constitutionally

protected expression.” Id. at 1319. Accordingly, based on the

allegations of CarePartners before the court on summary judg-

ment, we conclude that it would have been “clear to a reason-

able [official] that his conduct was unlawful in the situation

he confronted.” Saucier, 533 U.S. at 202. Therefore, the First

Amendment rights advanced by CarePartners were clearly

established for the purpose of evaluating the State employees’

qualified immunity defense.

The State employees argue, however, that the question of

whether to apply a “matter of public concern” requirement

from the public employee context to regulated entities’ speech

is unsettled and thus the law is not clearly established. They

contend that Soranno’s Gasco does not resolve the issue

because the parties in that case did not raise the “public con-

13648 CAREPARTNERS v. LASHWAY

cern” argument that the State employees have raised here,

and, therefore, the court made no determination on that more

particularized question.

[13] However, the assertion of an unsuccessful defense to

a violation of a constitutional right does not render the right

“unsettled” or not “clearly established.” Notwithstanding the

fact that the Soranno’s Gasco court did not make a specific

holding regarding the application of the “public concern”

requirement and Pickering balancing test beyond the public

employee context, that panel addressed a regulated entity’s

precise claim of retaliation by government officials as a result

of the entity’s owners’ public comments and petition to the

courts to challenge a regulatory act. The scope of the rights

at issue here were particularized enough at the time of the vio-

lation to satisfy the Saucier test for “clearly established” law.

The State employees also argue that this court should not

rely on Soranno’s Gasco because that decision relied in part

on a causation test from the public employee context, Mt.

Healthy, 429 U.S. 274. Far from being persuasive, this tends

to bolster the argument that the public concern should not be

grafted onto the regulated entity context because the Soran-

no’s Gasco court knew of the causation test and yet decided

not to apply it to the regulated entity’s retaliation claim.

Finally, we reject any suggestion that the State employees

could have believed, “reasonably but mistakenly,” that their

conduct did not violate a clearly established constitutional

right. Inouye, 504 F.3d at 712 & n.6; Skoog, 469 F.3d at 1229.

The speech and petition rights at issue have been clearly

established in this circuit since 1989. At least at the summary

judgment stage, absent some type of extraordinary showing

that is not present here, a court could hardly find that the gov-

ernment officials “reasonably but mistakenly” believed that

they could retaliate against a regulated entity and its owners

for exercising their First Amendment rights.

CAREPARTNERS v. LASHWAY 13649

IV. Conclusion

The district court correctly concluded that a grant of quali-

fied immunity would be premature because CarePartners

could potentially establish a prima facie case of retaliation

given the opportunity to conduct full discovery. Taking Care-

Partners’s allegations as true, it established that Kilkelly

engaged in protected speech and petition activities, and that

such activities may have been a substantial or motivating fac-

tor for the State employees’ disparate enforcement action.

Moreover, the State employees failed to show that the consti-

tutional rights at issue were not clearly established. Finally,

we hold that the public concern requirement and Pickering

balancing test do not apply to First Amendment retaliation

claims in the regulated entity context. Accordingly, the dis-

trict court’s denial of summary judgment on qualified immu-

nity is AFFIRMED.