Eng v. County of La

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID ENG, 

Plaintiff-Appellee,

v.

STEVE COOLEY, District Attorney;

STEVEN SOWDERS, Head Deputy No. 07-56055

District Attorney; CURT LIVESAY,

former Chief Deputy District  D.C. No.

CV-05-02686-ODW

Attorney; ANTHONY PATCHETT,

former Special Assistant to the OPINION

District Attorney; and CURTIS A.

HAZELL, Assistant District

Attorney; in their individual

capacities,

Defendants-Appellants.



Appeal from the United States District Court

for the Central District of California

Otis D. Wright, II, District Judge, Presiding

Argued and Submitted

November 20, 2008—Pasadena, California

Filed January 14, 2009

Before: Richard D. Cudahy,* Harry Pregerson, and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Hawkins

*The Honorable Richard D. Cudahy, Senior United States Circuit Judge

for the Seventh Circuit, sitting by designation.

507

ENG v. COOLEY 511

COUNSEL

Jin Suk Choi, Franscell, Strickland, Roberts & Lawrence,

P.C., Glendale, California, for the defendants-appellants.

D. Jay Ritt, Bensinger, Ritt, Tai & Thvedt, LLP, Pasadena,

California, for the plaintiff-appellee.

OPINION

HAWKINS, Circuit Judge:

We must determine whether Steve Cooley, Steven

Sowders, Curt Livesay, Anthony Patchett, and Curtis Hazell

(collectively, the “Defendants”) are entitled in their individual

capacities to qualified immunity in this § 1983 First Amend-

ment retaliation case.1 Resolving this question involves, in

part, David Eng’s claim that he was retaliated against by the

1

Eng’s complaint also identifies as defendants the County of Los Ange-

les and the named defendants in their official capacities. Qualified immu-

nity is not available, however, to municipalities or individuals in their

official capacities. See, e.g., Hallstrom v. City of Garden City, 991 F.2d

1473, 1482 (9th Cir. 1993) (“A municipality (and its employees sued in

their official capacities) may not assert a qualified immunity defense to

liability under Section 1983.” (citing Owen v. City of Independence, 445

U.S. 622, 638 (1980); Kentucky v. Graham, 473 U.S. 159, 165-68

(1985))). We therefore consider only the individual defendants in their

individual capacities in this interlocutory appeal.

512 ENG v. COOLEY

Defendants for an interview given by his lawyer on his behalf

to the press. Concluding that we lack jurisdiction to address

whether Eng has third party standing to vindicate the constitu-

tional rights of his lawyer, but that he may nevertheless claim

a personal First Amendment interest in his lawyer’s advocacy

on his behalf, we affirm the district court’s partial denial of

qualified immunity.

I. FACTUAL AND PROCEDURAL BACKGROUND

“Assuming that [Eng]’s version of the material facts is cor-

rect, as we must in the context of an interlocutory appeal of

a qualified immunity decision,” CarePartners, LLC v. Lash-

way, 545 F.3d 867, 878 (9th Cir. 2008), the record establishes

the following.

A. Factual Background

Eng, a Los Angeles County Deputy District Attorney, was

assigned to the Belmont Task Force (“Task Force”) to investi-

gate allegations of fraud and environmental crimes related to

the planning and construction of the Los Angeles Unified

School District’s Belmont Learning Complex (“Belmont”).

The Task Force was established by newly-elected District

Attorney Steve Cooley, who had campaigned on a promise to

reform the Belmont project. The Task Force was headed by

Special Assistant Anthony Patchett, who emphasized from the

beginning that the Task Force would deliver “slam dunk”

indictments against prominent individuals involved with the

Belmont project.

Following an extensive seven-month investigation, the

Task Force concluded that the building site was and had

always been environmentally safe and that no indictments

should issue. Hours before the Task Force presented its find-

ings and recommendations to Cooley and his executive staff,

Eng briefed Patchett about the report. Patchett threatened Eng

with “severe [personal] consequences” if the Task Force did

ENG v. COOLEY 513

not say what Patchett believed Cooley “wanted to hear.” Eng

nevertheless presented his report recommending that no crim-

inal charges be brought. Following Eng’s discussion of the

Task Force’s findings, Patchett made his own presentation

opposing Eng’s report and distributed proposed indictments

against several prominent individuals. Cooley’s executive

staff considered both recommendations and declined to adopt

Patchett’s.

In the same meeting, the Task Force also discussed a Los

Angeles Times article reporting that the Los Angeles Unified

School District’s (the “School District”) lease-purchase agree-

ments used to finance the Belmont project were being can-

celed and that the School District would have to refinance the

project at a substantially higher interest rate. According to

Eng, the agreements were cancelled because Patchett had

improperly leaked to the IRS that the School District had

committed fraud in purchasing the Belmont property. Eng

argued that the lease-purchase agreements had been legal and

that Patchett’s contrary report to the IRS was “wrong and

should be rectified.” Cooley, who had become angry with

Eng, told him to “shut up.”

Over the next several months, Cooley and members of his

staff met frequently to discuss “a method of forcing David

Eng out of the District Attorney’s Office.” First, a few months

after the presentation, John Zajeck (who replaced Patchett as

head of the Task Force) informed Eng that he was under

investigation for sexual harassment of a Task Force law clerk

with whom Eng had previously engaged in a consensual “pri-

vate relationship.” The relationship was not unusual and was

not in violation of any office policy.

Patchett and Zajeck had approached the law clerk earlier to

inquire about the relationship. She told the pair that Eng had

not sexually harassed her, nor had she told anyone he had.

After learning that Zajeck had initiated a sexual harassment

investigation against Eng, moreover, she expressly advised

514 ENG v. COOLEY

the department that Eng had not sexually harassed her. The

investigation nevertheless proceeded without the law clerk’s

knowledge or participation. Eng was told to work from home

until further notice and not permitted to return to work until

the following month.

Next, in what Eng asserts was a “clear demotion,” Cooley

reassigned him to the Pomona Juvenile Division, even though

Eng was a senior attorney in the office, and the Juvenile Divi-

sion is “considered to be the first stop for beginning attor-

neys.” (Eng had served in the Juvenile Division in the mid-

1980s.) Eng was also interviewed by three District Attorney

investigators regarding the alleged sexual harassment charge.

During the interview, the investigators falsely claimed that the

law clerk had not disavowed the alleged harassment. No

harassment charges were ever brought against Eng.

About five months later, Eng was suspended with pay and

instructed not to return to work without further notice, at

which time he retained attorney Mark Geragos. Eng was sub-

sequently served with a Notice of Intent to Suspend, which

stated that misdemeanor charges had been filed against him

for using an office computer to access private information.

Head Deputy Steven Sowders subsequently informed Eng that

he was being suspended without pay. Eng and Geragos argued

that, because the allegations were baseless, his suspension

should be with pay. That request was denied. Sowders termi-

nated Eng’s pay and benefits and also refused to allow him to

“cash out” his vacation time, as was ordinarily allowed.

When the misdemeanor charges against Eng went to trial

some two months later, they were dismissed when the only

potential witness against Eng invoked his Fifth Amendment

right to remain silent, evidently having misused office com-

puters himself. Sowders still refused to allow Eng to return to

work. Eng and Geragos appealed to the County Civil Service

Commission, which ordered that Eng be allowed to return to

work and that his lost pay and benefits be restored. Sowders

ENG v. COOLEY 515

refused to follow the order and extended Eng’s suspension

without pay for an additional thirty days.

Around the same time, the Los Angeles Times published a

prominent article on Eng’s case, titled “D.A. Accused of Pay-

back Prosecution.” The article, which included an interview

with Geragos, detailed Eng’s allegations that he had been

prosecuted because he refused to file criminal charges against

individuals involved in the Belmont School project, and

because he complained that it was improper for members of

the Task Force to contact the IRS.

Shortly after the article went to press, Sowders informed

Eng and Geragos that Eng would “never be allowed to come

back” to the District Attorney’s Office and that “they would

come up with additional things to charge Eng with so that he

would remain on suspension or be terminated.” Ironically, the

day after the article was published, the District Attorney’s

office released the final Belmont Report, which mirrored the

conclusions originally presented by Eng.

Two weeks after the Los Angeles Times article appeared,

Sowders met with Eng and served him with a second Notice

of Intent to Suspend, realleging the same facts as in the origi-

nal notice and recounting additional allegations “stemm[ing]

from acts which purportedly occurred years prior.” During the

meeting, Sowders asked Eng why he had allowed Geragos to

give an interview to the Los Angeles Times. In a subsequent

meeting among Eng, Geragos, Sowders, and Chief Deputy

District Attorney Curt Livesay, Sowders offered to “resolve

matters” if Eng agreed to “tell the Los Angeles Times that

Geragos’s comments were unauthorized and inaccurate, and

if he would publicly apologize to Cooley.”

Without agreeing to the retraction, Eng returned to work

one week later at the Padrinos Juvenile Court. The following

week, however, the District Attorney’s office issued a second

Notice of Suspension without Pay, evidently again ignoring

516 ENG v. COOLEY

the Civil Service Commission’s order and the dismissal of the

criminal charges against Eng. In a second hearing before the

Civil Service Commission, the Commission resolved all out-

standing allegations in Eng’s favor, including the sexual

harassment charges. Eng later returned to work once again but

discovered that he was not receiving full benefits. He has

since been passed over for promotion.

B. Procedural Background

Eng filed suit under 42 U.S.C. § 1983 asserting, in addition

to a range of state law claims, that the Defendants had retali-

ated against him for exercising his First Amendment right to

comment on the Belmont School Project and the leaks to the

IRS, and to speak through his attorney to the press, in viola-

tion of the First and Fourteenth Amendments.

Following discovery, the Defendants moved for summary

judgment, asserting in part qualified immunity from suit. The

district court granted summary judgment with respect to

Eng’s recommendation that no criminal charges be filed

against individuals associated with the Belmont project.

According to the court, “Eng was merely fulfilling his job

duties when he gave his Task Force recommendation,” and

therefore those statements were “not protected under the First

Amendment.”

The district court denied the remainder of the Defendants’

motion for summary judgment. The court first addressed

whether Eng had asserted a constitutional right. With respect

to his comments about the leaks to the IRS, it concluded that

“there is a genuine factual dispute between the parties as to

whether this statement by Eng was made as part of his Task

Force duties or as a private citizen speaking on a matter of

public concern.” With respect to Eng’s attorney’s interview

with the Los Angeles Times, the district court concluded that

“[t]he attorney made the statements on Eng’s behalf, in his

role as counsel. Consequently, the two have a sufficiently

ENG v. COOLEY 517

close relationship that Eng will be able effectively to assert

his attorney’s rights.”

Having “established that Eng has legitimate First Amend-

ment claims with regard to his protected speech,” the district

court concluded that “First Amendment protection is a clearly

established constitutional right” and the Defendants therefore

were not immune from liability. The Defendants appeal.

II. JURISDICTION AND STANDARD OF REVIEW

We have interlocutory appellate jurisdiction pursuant to 28

U.S.C. § 1291 to review the partial denial of qualified immu-

nity in this 42 U.S.C. § 1983 action. See Mitchell v. Forsyth,

472 U.S. 511, 524 (1985).

The district court granted qualified immunity with respect

to certain of Eng’s statements, which it determined were con-

stitutionally unprotected. Generally, “a challenge to the grant

of qualified immunity [is] not independently interlocutorily

appealable.” Krug v. Lutz, 329 F.3d 692, 694 (9th Cir. 2003)

(emphasis added). Although we may take pendant jurisdiction

to review a grant of qualified immunity on interlocutory

appeal if it is “inextricably entwined” with a denial of quali-

fied immunity, Watkins v. City of Oakland, 145 F.3d 1087,

1091 (9th Cir. 1998), this is not such a case, nor does Eng

argue it is. We therefore lack jurisdiction to review the district

court’s partial grant of qualified immunity and will consider

only those statements with respect to which the district court

denied qualified immunity.

Our interlocutory jurisdiction to review a denial of quali-

fied immunity is limited exclusively to questions of law,

which we review de novo. Lee v. Gregory, 363 F.3d 931, 932

(9th Cir. 2004). A district court’s determination that the par-

ties’ evidence presents genuine issues of material fact is cate-

gorically unreviewable on interlocutory appeal. Id. (citing

Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283,

518 ENG v. COOLEY

1291 (9th Cir. 1999)). “Where disputed facts exist, we assume

that the version of the material facts asserted by [the] Plain-

tiff[ ], as the non-moving party, is correct.” KRL v. Estate of

Moore, 512 F.3d 1184, 1189 (9th Cir. 2008). We must there-

fore limit our review to whether the Defendants would be

entitled to qualified immunity as a matter of law assuming all

factual disputes were resolved in Eng’s favor.

III. DISCUSSION

The qualified immunity inquiry involves two sequential

questions: (1) “[t]aken in the light most favorable to the party

asserting the injury, do the facts alleged show the [official’s]

conduct violated a constitutional right?” and (2) “if a violation

could be made out on a favorable view of the parties’ submis-

sions, . . . [was] the right . . . clearly established . . . in light

of the specific context of the case[?]” Saucier v. Katz, 533

U.S. 194, 201 (2001). We address each question in turn.

A. Whether Eng Alleged a Violation of a Constitutional

Right

1. Whether Eng May Assert a Claim for his Attorney’s

Speech

[1] Before addressing whether Eng has demonstrated that

the Defendants violated his constitutional rights, we must first

decide as a threshold matter whether he has a first person

interest, or third-party standing to vindicate Geragos’s inter-

est, in Geragos’s interview with the Los Angeles Times.

Both the parties and the district court frame this question as

one of third-party standing. The Defendants argue that Eng

cannot pursue a “vicarious” First Amendment retaliation

claim for statements made by Geragos because Eng has not

demonstrated that Geragos was hindered from protecting his

own interests. Eng counters that because Geragos was not

himself injured, his ability to protect his own First Amend-

ENG v. COOLEY 519

ment interests was indeed hindered because he has no stand-

ing to bring his own lawsuit. The district court agreed,

concluding that “Eng should be granted third-party standing

to assert a claim based, in part, upon the violation of his attor-

ney’s right to free speech.”

[2] We lack jurisdiction, however, to consider whether Eng

may assert third-party standing to vindicate Geragos’s First

Amendment interests. Our interlocutory review of the denial

of qualified immunity in this case is limited to the narrow

question whether the allegations indicate the Defendants vio-

lated Eng’s clearly established constitutional rights. The ques-

tion of standing, however, is relevant only to whether Eng

may ultimately recover for the alleged violation and is collat-

eral to the inquiry whether the violation has been sufficiently

plead. See, e.g., Davis v. Federal Election Comm’n, 128 S. Ct.

2759, 2769 (2008) (standing is relevant only to “whether the

party invoking jurisdiction had the requisite stake in the out-

come when the suit was filed,” not to the merits of the under-

lying claim). Qualified immunity, the Supreme Court has

explained, “focuses on the objective legal reasonableness of

an official’s acts,” Harlow v. Fitzgerald, 457 U.S. 800, 819

(1982) (emphasis added), and not on whether the plaintiff

may or may not recover for the alleged illegalities.

[3] We therefore agree with the Seventh Circuit that “the

appropriate focus in a qualified immunity analysis is the

legality of the conduct of the public official, not . . . his liabil-

ity to the ultimate plaintiff.” Triad Associates, Inc. v. Robin-

son, 10 F.3d 492, 499 (7th Cir. 1993). According to the

policies underlying qualified immunity, “ ‘[w]here an official

could be expected to know that certain conduct would violate

statutory or constitutional rights, he should be made to hesi-

tate,’ ” regardless whether “ ‘the person who suffers injury

caused by such conduct may have a cause of action.’ ” Id. at

500 (quoting Harlow, 457 U.S. at 821). Whether Eng has

standing to assert Geragos’s own First Amendment interests

520 ENG v. COOLEY

is therefore not before us.2 In any event, we do not believe

Eng need raise a third-party standing claim because we hold

that Geragos and Eng each have a first person constitutional

interest in Geragos’s speech.

[4] It is well settled that when a lawyer speaks on behalf of

a client, the lawyer’s right to speak “is almost always

grounded in the rights of the client, rather than any indepen-

dent rights of the attorney.” Mezibov v. Allen, 411 F.3d 712,

718, 720 (6th Cir. 2005) (citing Zal v. Steppe, 968 F.2d 924,

931 (9th Cir. 1992) (Trott, J., concurring)). In Legal Services

Corp. v. Velazquez, 531 U.S. 533 (2001), for example, the

Supreme Court considered whether Congress could impose

negative conditions on grants to legal services organizations,

such as “prevent[ing] an attorney from arguing to a court that

[federal welfare laws are] violative of the United States Con-

stitution.” Id. at 536. By its terms, the law at issue in that case

prevented attorneys who accepted funding from the Federal

Legal Services Corporation (“LSC”) from speaking certain

words on behalf of their clients. The Supreme Court framed

the question presented, however, as whether the law “violates

the First Amendment rights of LSC grantees and their cli-

ents.” Id. at 536 (emphasis added).

[5] In invalidating the restrictions, Velazquez reasoned that

“an LSC-funded attorney speaks on the behalf of the client”

and is the client’s “speaker.” Id. at 542. Just as the govern-

2

District courts may, of course, address standing when passing on Rule

12(b)(6) and 56 motions predicated on qualified immunity, but any ruling

on such issues will generally be independent of the qualified immunity

inquiry itself and cannot be raised on interlocutory appeal. Except in the

rare circumstance that the standing decision is “inextricably intertwined”

with the qualified immunity decision, Swint v. Chambers County Com’n,

514 U.S. 35, 50-51 (1995), we may address such matters only on appeals

from final judgments. See Will v. United States, 389 U.S. 90, 96 (1967)

(“All our jurisprudence is strongly colored by the notion that appellate

review should be postponed, except in certain narrowly defined circum-

stances, until after final judgment has been rendered by the trial court.”).

ENG v. COOLEY 521

ment’s lawyer must “deliver the government’s message,” the

private citizen’s lawyer must deliver the private citizen’s mes-

sage. Id. Velasquez therefore suggests that government action

seeking to limit an attorney’s advocacy “on behalf of” a client

implicates the client’s, as well as the attorney’s, First Amend-

ment interests—the attorney is, after all, the client’s speaker

hired to deliver the client’s message.3

[6] This conclusion is a natural corollary of the long-

recognized First Amendment right to hire and consult an

attorney. See, e.g., Mothershed v. Justices of the Supreme

Court, 410 F.3d 602, 611 (9th Cir. 2005) (“[W]e recognize

. . . the ‘right to hire and consult an attorney is protected by

the First Amendment’s guarantee of freedom of speech, asso-

ciation and petition.’ ” (quoting Denius v. Dunlap, 209 F.3d

944, 953 (7th Cir. 2000))); DeLoach v. Bevers, 922 F.2d 618,

620 (10th Cir. 1990) (“The right to retain and consult an attor-

ney . . . implicates . . . clearly established First Amendment

rights of association and free speech.”). The Tenth Circuit has

concluded, for example, “that an individual’s First Amend-

ment rights of association and free speech are violated when

a police officer retaliates against her for retaining an attor-

ney.” Malik v. Arapahoe County Dep’t of Soc. Servs., 191

F.3d 1306, 1315 (10th Cir. 1999). But the First Amendment’s

prohibition against state retaliation for hiring a lawyer would

ring hollow if the state could simply retaliate for the lawyer’s

advocacy on behalf of the client instead. A client’s free

speech interest in an attorney’s speech on the client’s behalf

therefore necessarily follows from the client’s First Amend-

ment right to retain counsel.

3

Although both Velazquez and Mezibov addressed attorneys’ representa-

tion of their clients in the courtroom, we see no reason to limit recognition

of a client’s constitutional interest in an attorney’s representation to in-

court speech only. There can be little doubt that zealous representation

extends far beyond the confines of brief-writing, examination of wit-

nesses, and oral argument. This case itself demonstrates that fact.

522 ENG v. COOLEY

[7] The further corollary of that interest, as Velazquez rec-

ognized, is that “[c]ounsel [must] be free of state control” and

unfettered in the exercise of “independent judgment on behalf

of the client.” 531 U.S. at 542 (citing Polk County v. Dodson,

454 U.S. 312, 321-22 (1981)). In this case, if the state were

able to retaliate freely against Eng for statements made by his

lawyer on his behalf, lawyers’ representation of public-

employee-plaintiffs would be chilled, and the state’s actions

would be “insulat[ed]” from full and open “judicial chal-

lenge,” thereby “distort[ing] the legal system.” Id. at 544, 547.

There can be little doubt, then, that “ ‘[s]tate action designed

to retaliate against and chill [an attorney’s advocacy for his or

her client] strikes at the heart of the First Amendment.’ ”

Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th

Cir. 1989) (citation omitted).

[8] Here, the district court concluded that when Geragos

spoke to the press about Eng’s First Amendment retaliation

case, Geragos “made the statements on Eng’s behalf, in his

role as counsel.” The Defendants do not dispute this charac-

terization. Because Geragos spoke on Eng’s behalf in his

capacity as Eng’s lawyer, his words were Eng’s words as far

as the First Amendment is concerned. Eng himself therefore

had a personal First Amendment interest in Geragos’s speech.

2. The First Amendment Retaliation Test

Having determined that Eng had a personal constitutional

interest in his own speech about the leak to the IRS and in

Geragos’s interview with the Los Angeles Times, we turn now

to the question whether Eng has alleged a violation of that

interest.

[9] It is well settled that the state may not abuse its position

as employer to stifle “the First Amendment rights [its employ-

ees] would otherwise enjoy as citizens to comment on matters

of public interest.” Pickering v. Bd. of Educ., 391 U.S. 563,

568 (1968). Acknowledging the limits on the state’s ability to

ENG v. COOLEY 523

silence its employees, the Supreme Court has explained that

“[t]he problem in any case is to arrive at a balance between

the interests of the [public employee], as a citizen, in com-

menting upon matters of public concern and the interest of the

State, as an employer, in promoting the efficiency of the pub-

lic services it performs through its employees.” Id.

[10] In the forty years since Pickering, First Amendment

retaliation law has evolved dramatically, if sometimes incon-

sistently. Unraveling Pickering’s tangled history reveals a

sequential five-step series of questions: (1) whether the plain-

tiff spoke on a matter of public concern; (2) whether the

plaintiff spoke as a private citizen or public employee; (3)

whether the plaintiff’s protected speech was a substantial or

motivating factor in the adverse employment action; (4)

whether the state had an adequate justification for treating the

employee differently from other members of the general pub-

lic; and (5) whether the state would have taken the adverse

employment action even absent the protected speech. Analy-

sis of these questions, further complicated by restraints on our

interlocutory appellate jurisdiction, involves a complex array

of factual and legal inquiries requiring detailed explanation.

First, the plaintiff bears the burden of showing that the

speech addressed an issue of public concern. See Connick v.

Myers, 461 U.S. 138 (1983); Bauer v. Sampson, 261 F.3d

775, 784 (9th Cir. 2001). “Speech involves a matter of public

concern when it can fairly be considered to relate to ‘any mat-

ter of political, social, or other concern to the community.’ ”

Johnson v. Multnomah County, Or., 48 F.3d 420, 422 (9th

Cir. 1995) (quoting Connick, 461 U.S. at 146). But “speech

that deals with ‘individual personnel disputes and grievances’

and that would be of ‘no relevance to the public’s evaluation

of the performance of governmental agencies’ is generally not

of ‘public concern.’ ” Coszalter v. City of Salem, 320 F.3d

968, 973 (9th Cir. 2003) (quoting McKinley v. City of Eloy,

705 F.2d 1110, 1114 (9th Cir. 1983)). “ ‘Whether an employ-

ee’s speech addresses a matter of public concern must be

524 ENG v. COOLEY

determined by the content, form, and context of a given state-

ment, as revealed by the whole record.’ ” Johnson, 48 F.3d at

422 (quoting Connick, 461 U.S. at 147-48).

The public concern inquiry is purely a question of law,

which we review de novo. Berry v. Dept. of Soc. Servs., 447

F.3d 642, 648 (9th Cir. 2006) (citing Hyland v. Wonder, 972

F.2d 1129, 1134 (9th Cir. 1992)). If the speech in question

does not address a matter of public concern, then the speech

is unprotected, and qualified immunity should be granted.

Second, the plaintiff bears the burden of showing the

speech was spoken in the capacity of a private citizen and not

a public employee. See Garcetti v. Ceballos, 547 U.S. 410,

421-22 (2006); Posey v. Lake Pend Oreille School Dist. No.

84, 546 F.3d 1121, 1126-27 (9th Cir. 2008). “Statements are

made in the speaker’s capacity as citizen if the speaker ‘had

no official duty’ to make the questioned statements, or if the

speech was not the product of ‘performing the tasks the

employee was paid to perform.’ ” Posey, 546 F.3d at 1127 n.2

(some internal quotations and alterations omitted) (quoting,

respectively, Marable v. Nitchman, 511 F.3d 924, 932-33 (9th

Cir. 2007), and Freitag v. Ayers, 468 F.3d 528, 544 (9th Cir.

2006)).

While “the question of the scope and content of a plaintiff’s

job responsibilities is a question of fact,” the “ultimate consti-

tutional significance of the facts as found” is a question of

law. Id. at 1129-30. In evaluating whether a plaintiff spoke as

a private citizen, we must therefore assume the truth of the

facts as alleged by the plaintiff with respect to employment

responsibilities. If the allegations demonstrate an official duty

to utter the speech at issue, then the speech is unprotected,

and qualified immunity should be granted.

Third, the plaintiff bears the burden of showing the state

“took adverse employment action . . . [and that the] speech

was a ‘substantial or motivating’ factor in the adverse action.”

ENG v. COOLEY 525

Freitag, 468 F.3d at 543 (quoting Coszalter v. City of Salem,

320 F.3d 968, 973 (9th Cir. 2003)); see also Marable, 511

F.3d at 930, n.10 (“It is [the plaintiff]’s burden to show that

his constitutionally protected speech was a motivating factor

in [the state]’s adverse employment action.”).

This third step is purely a question of fact. Once again, in

evaluating whether the government’s adverse employment

action was motivated by the employee’s speech, we must

assume the truth of the plaintiff’s allegations. If the plaintiff

does not sufficiently allege that the state retaliated for the

employee’s exercise of First Amendment rights, there can be

no recovery, and qualified immunity should be granted.

Fourth, if the plaintiff has passed the first three steps, the

burden shifts to the government to show that “under the bal-

ancing test established by [Pickering], the [state]’s legitimate

administrative interests outweigh the employee’s First

Amendment rights.” Thomas v. City of Beaverton, 379 F.3d

802, 808 (9th Cir. 2004); see also CarePartners, 545 F.3d at

880. This inquiry, known as the Pickering balancing test, asks

“whether the relevant government entity had an adequate jus-

tification for treating the employee differently from any other

member of the general public.” Garcetti, 547 U.S. at 418. Its

qualified restriction of ordinarily protected speech recognizes

that “[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.” Id.

Although the Pickering balancing inquiry is ultimately a

legal question, like the private citizen inquiry, its resolution

often entails underlying factual disputes. See, e.g., Rivero v.

City & County of San Francisco, 316 F.3d 857, 865-66 (9th

Cir. 2002) (determining “the outcome of the Pickering bal-

ancing test” requires resolving underlying “question[s] of

fact”); Hyland, 972 F.2d at 1139 (“Application of this balanc-

ing test entails” resolution of underlying “factual inquir[ies]”).

526 ENG v. COOLEY

Thus we must once again assume any underlying disputes will

be resolved in favor of the plaintiff to determine, as a matter

of law, whether the state has “adequate justification” to

restrict the employee’s speech. If the allegations, viewed in

light most favorable to the plaintiff, indicate adequate justifi-

cation, qualified immunity should be granted.

Fifth and finally, if the government fails the Pickering bal-

ancing test, it alternatively bears the burden of demonstrating

that it “would have reached the same [adverse employment]

decision even in the absence of the [employee’s] protected

conduct.” Thomas, 379 F.3d at 808 (quoting Ulrich v. City

and County of San Francisco, 308 F.3d 968, 976-77 (9th Cir.

2002)). In other words, it may avoid liability by showing that

the employee’s protected speech was not a but-for cause of

the adverse employment action. See Mt. Healthy City School

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). This

question relates to, but is distinct from, the plaintiff’s burden

to show the protected conduct was a substantial or motivating

factor. It asks whether the “adverse employment action was

based on protected and unprotected activities,” and if the state

“would have taken the adverse action if the proper reason

alone had existed.” Knickerbocker v. City of Stockton, 81 F.3d

907, 911 (9th Cir. 1996) (emphasis added).

The Mt. Healthy but-for causation inquiry is purely a ques-

tion of fact. Wagle v. Murray, 560 F.2d 401, 403 (9th Cir.

1977) (per curium) (“Mt. Healthy indicates the ‘trier-of-fact’

should determine whether the firing would have occurred

without the protected conduct.”); see also Karam v. City of

Burbank, 352 F.3d 1188 (9th Cir. 2003). In evaluating

whether the employee’s speech was a but-for cause of the

adverse employment action, we must therefore once again

assume the truth of the plaintiff’s allegations. Immunity

should be granted on this ground only if the state successfully

alleges, without dispute by the plaintiff, that it would have

made the same employment decisions even absent the ques-

tioned speech.

ENG v. COOLEY 527

3. Whether Eng Passes the First Amendment Retaliation

Test

Applying this five-step First Amendment retaliation test,

we conclude the allegations here demonstrate that Eng’s First

Amendment rights were violated with respect to both Eng’s

comments about the leak to the IRS and Geragos’s statements

on Eng’s behalf to the press.

a. Whether Eng’s Speech Addressed Matters of Public

Concern

The Defendants did not argue below and have not argued

on appeal that Eng’s statements did not address a matter of

public concern. Accordingly, any such argument is waived.

See, e.g., Butler v. Curry, 528 F.3d 624, 642 (9th Cir. 2008)

(defendant “waived this argument by failing to raise it either

in the district court or in his brief on appeal” (citing Nw.

Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918,

923 (9th Cir.1988))).

[11] In any event, there is little doubt that Eng’s speech did

address matters of public concern. “ ‘[C]ommunication[s] on

matters relating to the functioning of government’ . . . are

matters of inherent public concern.” Johnson v. Multnomah

County, Or., 48 F.3d 420, 425 (9th Cir.1995) (quoting McKin-

ley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.1983) (quot-

ing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,

575 (1980) (plurality opinion))). The leaking of information

(whether true or false) about the School District’s lease-

purchase agreements to the IRS was therefore a matter of pub-

lic concern insofar as it led to the need for additional, more

expensive financing for the public school complex.

[12] Speech that is “ ‘relevan[t] to the public’s evaluation

of the performance of governmental agencies’ ” also

addresses matters of public concern. Freitag, 468 F.3d at 545

(quoting Coszalter v. City of Salem, 320 F.3d 968, 973-74

528 ENG v. COOLEY

(9th Cir. 2003)). Here, the leaking of such statements, as well

as Geragos’s statements to the Los Angeles Times regarding

the retaliatory prosecution against Eng, were certainly “ ‘re-

levan[t] to the public’s evaluation of the performance of’ ” the

District Attorney’s office. Freitag, 468 F.3d at 545 (quoting

Coszalter, 320 F.3d at 973-74). We therefore conclude Eng’s

speech addressed matters of public concern.

b. Whether Eng Spoke as a Private Citizen

The Defendants expend great effort arguing that Eng’s

speech with respect to the IRS leak was “inextricably related

to his work,” and therefore that his speech was not protected

because it was uttered in his capacity as public employee. But

the district court determined that there is a genuine factual

dispute between the parties regarding whether Eng’s speech

about the IRS leaks was made as part of his Task Force duties

or as a private citizen. The district court’s determination that

the parties’ evidence presents genuine issues of material fact

is not reviewable on interlocutory appeal. Lee, 363 F.3d at

932. Once again, “[w]here disputed facts exist, . . . we can

determine whether the denial of qualified immunity was

appropriate [only] by assuming that the version of the mate-

rial facts asserted by the non-moving party is correct.” Jeffers,

267 F.3d at 903.

[13] Here, there can be no doubt that Eng’s version of the

facts plausibly indicates he had no official duty to complain

about any leak to the IRS or to authorize Geragos to speak to

the press about the retaliation being taken against him.

c. Whether the Adverse Employment Action Was Moti-

vated By Eng’s Speech

As a threshold matter, we must consider the full range of

adverse employment actions alleged in the complaint.

Although the Defendants correctly note that the district court

determined Eng was barred by the statute of limitations from

ENG v. COOLEY 529

recovering for any adverse employment actions taken before

January 1, 2003,4 whether any specific acts complained of are

time-barred is (like the third-party standing question) collat-

eral to the limited, interlocutory qualified immunity inquiry.

Whether a plaintiff brings an action in time to challenge cer-

tain conduct is irrelevant, that is, to the logically independent

question whether the state violated the plaintiff’s clearly

established rights. The applicability of the statute of limita-

tions is therefore not before us, and we will consider the full

range of adverse employment actions stated in Eng’s com-

plaint.

[14] The Defendants do not dispute that the initial investi-

gations and first suspension were motivated by Eng’s pro-

tected speech. They argue only that Eng’s transfer to the

juvenile division “was not motived by any subject speech”

and that “any argument by [Eng] that the 2003 suspension

was motivated by his attorney’s statements [to the press] was

unsupported by the evidence.” These assertions ignore, how-

ever, that we must assume resolution of the disputed facts in

Eng’s favor. Eng’s account of the meeting with Livesay and

Sowders, for example, plainly undermines the Defendants’

contrary assertion that the systematic investigations, prosecu-

tion, suspensions, and demotion of Eng were not motivated by

his speech. Eng’s further accounts of Cooley’s meetings with

his staff to discuss “a method of forcing David Eng out of the

District Attorney’s Office,” and Sowders’s threats to both Eng

and Geragos following publication of the Los Angeles Times

article, all also indicate that Eng’s speech was a “substantial

or motivating” factor in the adverse employment action.

4

We are skeptical that the district court was correct to apply the “dis-

crete acts” rather than “repeated conduct” analysis to, for example, the

ongoing investigations and prosecutions at issue in this case. See Amtrak

v. Morgan, 536 U.S. 101, 110-21 (2002) (distinguishing for statute of limi-

tations purposes between “[d]iscrete acts such as termination, failure to

promote, denial of transfer, or refusal to hire” and practices that “cannot

be said to occur on any particular day,” and instead “occur[ ] over a series

of days or perhaps years”).

530 ENG v. COOLEY

d. Pickering Balancing

Eng having passed the first three steps of the First Amend-

ment retaliation test, the burdens of evidence and persuasion

now shift to the Defendants to show that the balance of inter-

ests justified their adverse employment decision. But the

Defendants did not argue before the district court, and do not

argue before us now, that their interest in regulating Eng’s

speech was sufficient to outweigh Eng’s free speech interest.

They have therefore waived this argument. See, e.g., Butler,

528 F.3d at 642.

[15] In any event, Eng’s allegations show that the District

Attorney lacked adequate justification for treating Eng differ-

ently from other members of the public. The Defendants have

neither alleged nor offered any evidence to support a conclu-

sion that investigating, suspending, prosecuting, or transfer-

ring Eng for his speech was “necessary for [the District

Attorney’s office] to operate efficiently and effectively.” Gar-

cetti, 547 U.S. at 419 (citing Connick, 461 U.S. at 147).

Rather, viewing the allegations in the light most favorable to

Eng, the full range of adverse employment action appears to

have been a politically-motivated effort to silence Eng, who

stood to embarrass Cooley by undermining a central plank in

his campaign platform. On the record before us at this stage

in the case, the Defendants have not met their burden under

the Pickering balancing test.

e. Mt. Healthy But-For Causation

Rather than addressing Pickering, the Defendants argue

that they “would have reached the same [adverse employ-

ment] decision even in the absence of [Eng]’s protected con-

duct.” Thomas, 379 F.3d at 808 (quoting Ulrich, 308 F.3d at

976-77). They assert, for example, that Eng’s suspensions

would have been approved regardless of his protected speech

because they were in fact “due to the information gathered

from three separate internal investigations involving separate

ENG v. COOLEY 531

and independent allegations of misconduct.” This argument

ignores Eng’s allegations that the investigations and appar-

ently baseless charges were themselves motivated by his exer-

cise of his First Amendment rights.

The Defendants further assert that Eng’s performance on a

promotability review undermines a but-for connection

between his speech acts and his having been passed over for

promotion. But Eng alleges he received a low score on the

promotion review in part because his record contained accusa-

tions of sexual harassment and misuse of office computers—

accusations themselves motivated by his exercise of his First

Amendment rights.

[16] Taking Eng’s version of the facts as true, the Defen-

dants have therefore not met their burden to show that Eng’s

protected speech was not a but-for cause of the adverse

employment actions taken against him. In sum, Eng has prop-

erly alleged a violation of his constitutional rights.

B. Whether Eng’s Rights Were Clearly Established

1. The Clearly-Established Standard

[17] Passing the First Amendment retaliation test is only a

plaintiff’s first hurdle before defeating a motion for summary

judgment on qualified immunity. In addition to showing the

violation of a constitutional right, a plaintiff must also demon-

strate that the constitutional rights at issue were clearly estab-

lished at the time of the violation. The “clearly established”

requirement “operates ‘to ensure that before they are sub-

jected to suit, [government officials] are on notice their con-

duct is unlawful.” Hope v. Pelzer, 536 U.S. 730, 739 (2002)

(quoting Saucier, 533 U.S. at 206). For a constitutional right

to be clearly established, “its contours ‘must be sufficiently

clear that a reasonable official would understand that what he

is doing violates that right’ ” at the time of his conduct. Id.

(citations omitted) (quoting Anderson v. Creighton, 483 U.S.

532 ENG v. COOLEY

635, 640 (1987)). If a plaintiff’s constitutional rights were not

clearly established at the time of the violation, then qualified

immunity should be granted.

2. Whether Eng’s Rights Were Clearly Established

a. Eng’s Speech about the Leak to the IRS

The Defendants did not argue before the district court, and

do not argue before this court now, that Eng’s rights were not

clearly established with respect to any speech not spoken pur-

suant to his official employment duties. Relying on Garcetti

(decided in 2006), the Defendants assert only that “the law

was not clearly established [in 2001] as to the nature of First

Amendment protection for public employee speech expressed

pursuant to official job duties.” This observation is beside the

point.

Garcetti makes clear that if Eng’s comments about the

leaks to the IRS were spoken pursuant to his official job

duties, then he cannot recover regardless of the state of the

law in 2001, since there is no private First Amendment inter-

est in “speech that owes its existence to a public employee’s

professional responsibilities.” 547 U.S. at 421. And if the

statements were not spoken pursuant to Eng’s job duties, the

Defendants do not dispute that Eng’s free speech interest was

clearly established.

[18] Nor could they. Garcetti concluded only that “work

product” that “owes its existence to [an employee]’s profes-

sional responsibilities” is not protected by the First Amend-

ment. Id. at 422. (Regulation of such speech “simply reflects

the exercise of employer control over what the employer itself

has commissioned or created.” Id. at 422.) Prior to Garcetti,

the Defendants therefore may have been uncertain whether

the Task Force report itself was protected, but only insofar as

they might reasonably have believed that it was protected

when in fact it was not. There could be no confusion, how-

ENG v. COOLEY 533

ever, that when Eng “comment[ed] upon matters of public

concern” “as a citizen” and not pursuant to his job responsi-

bilities, his speech was protected by the First Amendment—

that rule had long been the law of the land.5 See, e.g., Mt.

Healthy, 429 U.S. at 248 (quoting Pickering, 391 U.S. at

568). Thus, assuming Eng’s version of the facts to be true, he

had a clearly established right to comment on the leak to the

IRS.6

b. Eng’s Attorney’s Speech to the Press

[19] Geragos’s and Eng’s respective First Amendment

interests in Geragos’s speech to the press were also clearly

established at the time of the alleged retaliation. The clarity

of Geragos’s interest in his own speech (regardless of Eng’s

standing to vindicate that interest) is beyond dispute.

With respect to Eng’s personal interest, by 2003, the right

to retain and consult an attorney “implicate[d] . . . clearly

established First Amendment rights of association and free

speech.” DeLoach, 922 F.2d at 620. It was also clearly estab-

lished that “an individual’s First Amendment rights of associ-

ation and free speech are violated when a police officer

retaliates against her for retaining an attorney.” Malik, 191

F.3d at 1315. An individual’s personal First Amendment

5

Whether it was “clear” that Eng spoke pursuant to his job duties is a

question of fact and not law; the only question here is whether Eng’s free

speech right was “clearly established” as a matter of law, assuming his

version of the facts to be true.

6

We have previously characterized the Pickering balancing test as “a

context-intensive, case-by-case balancing analysis,” the outcome of which

is rarely clear; thus “the law regarding [First Amendment retaliation]

claims will rarely, if ever, be sufficiently ‘clearly established’ to preclude

qualified immunity.” Dible v. City of Chandler, 515 F.3d 918, 930 (9th

Cir. 2008) (quoting Moran v. Washington, 147 F.3d 839, 847 (9th

Cir.1998)). Because the Defendants waived the Pickering balancing argu-

ment, we need not address whether the Defendants’ lack of justification

to treat Eng differently was clearly established.

534 ENG v. COOLEY

interest in his or her lawyer’s speech on his or her behalf is

a natural corollary of the First Amendment right to retain

counsel. Any other conclusion would eviscerate that right.

Velazquez had also been decided two years prior to Gera-

gos’s interview with the Los Angeles Times. That decision

recognized that a federal law seeking to prevent lawyers from

making certain arguments on behalf of their clients implicated

the client’s First Amendment rights. As the Sixth Circuit later

concluded, “Velazquez [did not] recognize a First Amendment

right personal to the attorney independent of his client,” and

lawyers’ free speech interests when advocating on behalf of

clients “[are] almost always grounded in the rights of the cli-

ent, rather than any independent rights of the attorney.” Mezi-

bov, 411 F.3d at 720.

[20] Although we have not previously addressed a case pre-

cisely like this one, “ ‘officials can still be on notice that their

conduct violates established law even in novel factual circum-

stances.’ ” Porter v. Bowen, 496 F.3d 1009, 1026 (9th Cir.

2007) (quoting Hope, 536 U.S. at 741); see also Hope, 536

U.S. at 741 (“Although earlier cases involving ‘fundamentally

similar’ facts can provide especially strong support for a con-

clusion that the law is clearly established, they are not neces-

sary to such a finding.”). Because this case involved “mere

application of settled law to a new factual permutation,” Por-

ter, 496 F.3d at 1026, we conclude that Eng’s personal First

Amendment interest in Geragos’s speech was clearly estab-

lished by 2003. Denius, DeLoach, and Velazquez were suffi-

cient to put the Defendants on notice of the common sense

conclusion that the government may not retaliate against a

public employee for speech spoken by the employee’s lawyer

on the employee’s behalf.

IV. CONCLUSION

The district court’s partial denial of qualified immunity is

affirmed in full.

AFFIRMED.