Shayna Lathus v. City of Huntington Beach

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHAYNA LATHUS, an individual, No. 21-56197

Plaintiff-Appellant,

D.C. No.

v. 8:21-cv-00808-

SB-DFM

CITY OF HUNTINGTON

BEACH, a municipal entity,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the Central District of California

Stanley Blumenfeld, Jr., District Judge, Presiding

Argued and Submitted October 17, 2022

Pasadena, California

Filed January 5, 2023

Before: Paul J. Watford and Andrew D. Hurwitz, Circuit

Judges, and Eric N. Vitaliano, * District Judge.

Opinion by Judge Hurwitz

*

The Honorable Eric N. Vitaliano, United States District Judge for the

Eastern District of New York, sitting by designation.

2 LATHUS V. CITY OF HUNTINGTON BEACH

SUMMARY **

Civil Rights

Affirming the district court’s dismissal of a complaint for

failure to state a claim, the panel held that the First

Amendment does not protect a volunteer member of a

municipal advisory board from dismissal by the city

councilperson who appointed her and who is authorized

under a city ordinance to remove her.

While serving as a Huntington Beach City

Councilperson, Kim Carr appointed plaintiff Shayna Lathus

to the city’s Citizen Participation Advisory Board

(“CPAB”). Each councilperson appoints one member to the

seven-person CPAB and may remove that member without

cause. See Huntington Beach, Cal., Mun. Code §§ 2.97.020,

2.100.100. After being appointed to the CPAB, Lathus was

photographed at an immigrants’ rights rally standing near

individuals whom Carr believed to be “Antifa.” After

determining that Lathus’s public denouncement of Antifa

was insufficient, Carr removed Lathus from the CPAB,

citing lack of shared values.

The panel held that given the statutory structure and

duties of the CPAB, the public could readily infer that a

CPAB member’s actions and statements while serving in the

role reflected the current views and goals of the appointing

councilperson. Like each of her fellow board members,

Lathus was the “public face” of her appointor. She could

therefore be dismissed for lack of political

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

LATHUS V. CITY OF HUNTINGTON BEACH 3

compatibility. The panel further rejected Lathus’ compelled

speech claim and held that an elected official can compel the

public speech of her representative because that speech will

be perceived as the elected official’s own. Finally, given the

structural features of the CPAB, which taken together make

its members public surrogates of the appointing

councilperson, the district court did not abuse its discretion

by denying Lathus leave to amend her complaint.

COUNSEL

Andrea R. Bird (argued), Manatt Phelps & Phillips LLP,

Costa Mesa, California; Jerold D. Friedman, Huntington

Beach, California; for Plaintiff-Appellant.

Mark J. Austin (argued), Burke Williams & Sorensen LLP,

Santa Ana, California; Stephen A. McEwen, Burke Williams

& Sorensen LLP, Irvine, California; Michael J. Vigliotta,

Office of the City Attorney, Huntington Beach, California;

for Defendant-Appellee.

4 LATHUS V. CITY OF HUNTINGTON BEACH

OPINION

HURWITZ, Circuit Judge:

The issue for decision is whether the First Amendment

protects a volunteer member of a municipal advisory board

from dismissal by the city councilperson who appointed her

and is authorized under a city ordinance to remove her.

Because the advisory board member is the “public face” of

the elected official who appointed her to the body, we hold

that she “can be fired for purely political reasons.” Hobler

v. Brueher, 325 F.3d 1145, 1150 (9th Cir. 2003) (cleaned

up).

I.

While serving as a Huntington Beach City

Councilperson, Kim Carr appointed Shayna Lathus to the

city’s Citizen Participation Advisory Board (“CPAB”) after

Lathus lost a 2018 election for a seat on the City Council.

Each councilperson appoints one member to the seven-

person CPAB and may remove that member without cause.

See Huntington Beach, Cal., Mun. Code §§ 2.97.020,

2.100.100. The CPAB’s mandate is to “provide citizen

participation and coordination in the City’s planning

processes” related to a federal Department of Housing and

Urban Development block grant program, with an emphasis

on addressing issues faced by “low and moderate income

households.” Id. § 2.97.030. It holds regular open meetings

to “assess the needs of the community,” “evaluate and

prioritize projects,” “obtain citizen input,” and “provide

specific recommendations” to the City Council. Id. §§

2.97.030, 2.97.070.

LATHUS V. CITY OF HUNTINGTON BEACH 5

After being appointed to the CPAB, Lathus was

photographed at an immigrants’ rights rally standing near

individuals whom Carr believed to be “Antifa.” Carr then

instructed Lathus to write a “public statement on social

media denouncing Antifa,” and Lathus did so, believing that

continuing in her “position on the . . . CPAB depended” on

it. Carr deemed the statement insufficient and removed

Lathus from the CPAB, stating that “[t]hose that do not

immediately denounce hateful, violent groups do not share

my values and will not be a part of my team.”

Lathus sued the City of Huntington Beach, claiming

retaliation for exercising her First Amendment rights to free

speech, association, and assembly, and alleging Carr’s

demand for a public statement amounted to

unconstitutionally compelled speech. Lathus sought various

remedies, including reinstatement to the CPAB.

The district court dismissed the complaint, holding that

under Blair v. Bethel School District, 608 F.3d 540, 543 (9th

Cir. 2010), “Carr was not politically powerless to

disassociate herself from Plaintiff’s public actions through a

process that authorized appointment and removal in Carr’s

sole discretion.” The court held that “Carr was permitted to

consider the political ramifications not only when she

decided to appoint Plaintiff but also when she later elected

to remove her from the public position.”

Lathus timely appealed. We have jurisdiction under 28

U.S.C. § 1291 and review de novo the district court’s

dismissal under Federal Rule of Civil Procedure 12(b)(6) for

failure to state a claim. See Faulkner v. ADT Sec. Servs.,

Inc., 706 F.3d 1017, 1019 (9th Cir. 2013). We accept as true

all well-pleaded allegations of material fact in the operative

complaint and construe them in favor of Lathus, the non-

6 LATHUS V. CITY OF HUNTINGTON BEACH

moving party. See id.

We agree with the district court that the critical issue is

whether Lathus was effectively “a political extension” of

Carr on the CPAB. Concluding that, under this particular

statutory scheme, Lathus was effectively Carr’s “public

face” on the CPAB, we affirm. See Hobler, 325 F.3d at

1150–55.

II.

In attending the rally, Lathus plainly engaged in activity

protected by the First Amendment. See Hudson v. Craven,

403 F.3d 691, 695–96 (9th Cir. 2005). Citing Blair, the

district court held that the First Amendment did not,

however, insulate her from dismissal that was the outcome

of “the regular functioning of the political process.” Blair,

608 F.3d at 545. Although Blair is instructive, unlike the

district court, we do not find it controlling.

Blair was elected as vice president of a school board by

its members. See id. at 542. After Blair made statements

critical of the district superintendent to a reporter, the other

board members removed him from the position. See id. at

543. We found no First Amendment violation in that

removal of an elected official “from a titular position . . . by

the very people who elected him to the position in the first

place,” noting that Blair “retained the full range of rights and

prerogatives” that otherwise came with being a publicly

elected board member. Id. at 544. We saw “little difference

between what the Board’s internal vote against Blair

accomplished and what voters in a general public election

might do if they too were disaffected by Blair’s advocacy.”

Id. at 545. And, we viewed Blair’s fellow board members as

exercising their own “right to replace Blair with someone

who, in their view, represented the majority view of the

LATHUS V. CITY OF HUNTINGTON BEACH 7

Board.” Id. at 546.

This case presents a different scenario. As we have

noted, our statement in Blair that “more is fair in electoral

politics than in other contexts,” id. at 544, is best understood

as pertaining to the “retaliatory acts of elected officials

against their own,” Boquist v. Courtney, 32 F.4th 764, 776

(9th Cir. 2022) (cleaned up). Lathus was not an elected

official, but rather an appointed volunteer in public service.

Her volunteer status does not by itself remove First

Amendment protection. See Hyland v. Wonder, 972 F.2d

1129, 1135 (9th Cir. 1992). Moreover, in contrast to Blair,

Lathus neither gained nor lost her appointment through a

vote by her fellow board members, nor was her dismissal

simply the result of an “internal political leadership

election.” Blair, 608 F.3d at 544.

III.

But, even if Blair does not control the day, it makes clear

that the First Amendment rights of government officials are

not absolute. It is settled, for example, that an appointed

public official can be removed for engaging in otherwise

protected First Amendment activity if “political affiliation is

an appropriate requirement for the effective performance of

the public office involved.” Hobler, 325 F.3d at 1154. The

Supreme Court so recognized in Elrod v. Burns, in which the

three-justice plurality held that employees in “policymaking

positions” may be dismissed for engaging in activities

protected by the First Amendment so that “policies which

the electorate has sanctioned are effectively implemented.”

8 LATHUS V. CITY OF HUNTINGTON BEACH

427 U.S. 347, 372 (1976). 1 The Court later clarified that “the

ultimate inquiry is not whether the label ‘policymaker’ or

‘confidential’ fits a particular position; rather, the question

is whether the hiring authority can demonstrate that party

affiliation is an appropriate requirement for the effective

performance of the public office involved.” Branti v. Finkel,

445 U.S. 507, 518 (1980).

In reviewing dismissals under the Elrod–Branti

framework, we have sometimes analyzed whether a position

is “policymaking,” Bardzik v. County of Orange, 635 F.3d

1138, 1144 (9th Cir. 2011), or “confidential,” Hobler, 325

F.3d at 1151. But Branti makes plain that “a position may

be appropriately considered political even though it is

neither confidential nor policymaking in character.” 445

U.S. at 518. We must therefore determine whether

“commonality of political purpose” with Carr is an

appropriate requirement for Lathus’s service on the CPAB.

Walker v. City of Lakewood, 272 F.3d 1114, 1132 (9th Cir.

2001) (cleaned up); see also Fazio v. City & County of San

Francisco, 125 F.3d 1328, 1332 (9th Cir. 1997) (stating that

the relevant inquiry is whether “political considerations are

appropriate requirements for the effective performance of

the job”) (cleaned up).

“[W]here a statute establishes a position, the statute is

likely to provide the best foundation for classifying it for . . .

First Amendment purposes.” Hagan v. Quinn, 867 F.3d 816,

827 (7th Cir. 2017); see also Underwood v. Harkins, 698

1

Two justices concurred, stating that a “nonpolicymaking,

nonconfidential government employee” cannot “be discharged or

threatened with discharge from a job that he is satisfactorily performing

upon the sole ground of his political beliefs.” Elrod, 427 U.S. at 375

(Stewart, J., concurring).

LATHUS V. CITY OF HUNTINGTON BEACH 9

F.3d 1335, 1344 (11th Cir. 2012) (“[W]e look at the position

in the abstract and at what state or local law allows a person

in that position to do, and not at a snapshot of the position as

it is being carried out by a given person at a given point in

time under a given elected official.”). The CPAB consists of

seven members, each appointed by a separate councilperson,

Huntington Beach, Cal., Mun. Code § 2.97.020, who can

also remove that member without cause, see id. § 2.100.100.

Because each member of the CPAB, an entity that advises

on matters of policy and solicits public feedback, is

appointed and removable by a particular councilperson,

board members speak to “the public and to other

policymakers on behalf of the official” who appointed them,

Hobler, 325 F.3d at 1155, a factor that indicates

“responsiveness to partisan politics and political leaders,”

Fazio, 125 F.3d at 1334 n.5 (cleaned up). In other words,

because the public could readily infer that a CPAB

member’s actions and statements while serving in the role

reflect the current views and goals of the appointing

councilperson, Lathus was Carr’s “public face” on the board,

and the public was entitled to assume that she spoke on

Carr’s behalf. See Hobler, 325 F.3d at 1154–55; see also

Walker, 272 F.3d at 1133 (concluding that a contractor was

a policymaker despite the absence of legal authority to speak

on behalf of a city because of the public perception that it

would have official authority as the “sole agency in the City

addressing fair housing concerns”).

Moreover, “the provision of housing to low and middle

income city residents is a vital political issue,” Jimenez

Fuentes v. Torres Gaztambide, 807 F.2d 236, 243 (1st Cir.

1986) (en banc), and the CPAB is designed to influence

policy decisions by the Council on such programs, see Fazio,

125 F.3d at 1334 n.5. The CPAB is a conduit between the

10 LATHUS V. CITY OF HUNTINGTON BEACH

community and City Council; its directive is to “assess the

needs of the community,” “evaluate and prioritize projects,”

“obtain citizen input,” and “provide specific

recommendations” to the City Council. Huntington Beach,

Cal., Mun. Code § 2.97.030. It conducts “regular monthly

meetings” open to the public. Id. § 2.97.070. Because a

CPAB member is thus “an adviser [who] formulates plans

for the implementation of broad goals,” Elrod, 427 U.S. at

368, a councilperson is entitled to an appointee who

represents her political outlook and priorities.

This case thus presents a different situation than those in

which we have held that retaliation against officeholders for

their exercise of First Amendment rights is forbidden. For

instance, we have found that First Amendment protections

extend to those who “did not have authority to speak to the

media without prior approval of higher-ranking officials,” or

did not “formulate or substantially influence plans to

implement the broad goals” of the appointing authority.

Hunt v. County of Orange, 672 F.3d 606, 610, 614 (9th Cir.

2012). In contrast, Lathus’s role on the CPAB required her

to speak to the public and plan low- and middle-income

housing and development. Cf. DiRuzza v. County of

Tehama, 206 F.3d 1304, 1310–11 (9th Cir. 2000) (reversing

grant of summary judgment to defendants because deputy

sheriffs “appear to be the lowest ranking peace officers in

the department” and plaintiff was “limited to her prescribed

custodial duties” in a jail); Thomas v. Carpenter, 881 F.2d

828, 832 (9th Cir. 1989) (reversing dismissal of the

complaint of a sheriff’s lieutenant because tasks did “not

involve the formulation of departmental policy”).

Given the statutory structure and duties of the CPAB,

Lathus, like each of her fellow board members, was the

“public face” of her appointor. Hobler, 325 F.3d at 1154.

LATHUS V. CITY OF HUNTINGTON BEACH 11

Lathus could plainly “undermine [Carr’s] credibility and

goals,” and therefore could be dismissed for lack of political

compatibility. Bardzik, 635 F.3d at 1149. Cases from our

sister Circuits reach the same conclusion. See, e.g., Garza v.

Escobar, 972 F.3d 721, 731–32 (5th Cir. 2020) (affirming

dismissal of the political retaliation claims of a Crime Victim

Unit Coordinator because she “represented the DA’s office

to crime victims” and to “other members of the law

enforcement community”); Hagan, 867 F.3d at 828 (holding

that appointed workers’ compensation arbitrators can be

dismissed as “the face of the administration”); Walsh v.

Heilmann, 472 F.3d 504, 505–06 (7th Cir. 2006) (upholding

dismissal of administrative hearing officer because he

decided local vehicular, housing, and zoning matters on

which “political careers may turn” and elected officials “may

insist that the holders of the delegated power be reliable

implementers” of their agendas); Hoard v. Sizemore, 198

F.3d 205, 214–15 (6th Cir. 1999) (holding that road foremen

are “inherently political” because of “the central importance

of road maintenance in a rural county” and because they

“may be called upon to serve as the executive’s liaison with

the public as far as road conditions are concerned”); Flynn

v. City of Boston, 140 F.3d 42, 46 (1st Cir. 1998) (noting “it

is enough that the official be involved in policy, even if only

as an adviser, implementer, or spokesperson”) (cleaned up);

Brown v. Trench, 787 F.2d 167, 170 (3d Cir. 1986) (finding

no First Amendment violation because a dismissed county

employee’s “principal duty was to act as spokesman for the

Commissioners and help promote county projects”). 2

2

We need not separately balance Lathus’s interests “in commenting

upon matters of public concern” against the City’s interest “in promoting

12 LATHUS V. CITY OF HUNTINGTON BEACH

IV.

Our analysis of Lathus’s retaliation claim also dictates

the outcome of her compelled speech claim. Cf. Walker, 272

F.3d at 1131 (noting that “an employee’s status as a

policymaking or confidential employee is dispositive of any

First Amendment retaliation claim”) (cleaned up). The

central “constitutional issue” in compelled speech cases is

whether the “State forced one speaker to host another

speaker’s speech.” Agency for Int’l Dev. v. All. for Open

Soc’y Int’l, Inc., 140 S. Ct. 2082, 2088 (2020). Lathus’s

complaint asserted that a “coerced” statement about her rally

attendance was “a condition of . . . retaining her status.” But

an elected official can compel the public speech of her

representative because that speech will be perceived as the

elected official’s own. Just as Carr was entitled to political

loyalty from her appointee to the CPAB, she was also

entitled to compel that appointee to espouse her political

philosophy.

V.

The remaining issue is whether the district court abused

its discretion in denying Lathus leave to amend her

complaint. See Cervantes v. Countrywide Home Loans, Inc.,

656 F.3d 1034, 1041 (9th Cir. 2011). Although leave to

amend should be given freely, see Fed. R. Civ. P. 15(a),

denying leave is not an abuse of discretion if “it is clear that

granting leave to amend would have been futile,” Thinket Ink

the efficiency of the public services it performs through its employees,”

Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968), because “where the

Branti exception applies the employee can be fired for purely political

reasons without any Pickering balancing,” Hobler, 325 F.3d at 1150

(cleaned up).

LATHUS V. CITY OF HUNTINGTON BEACH 13

Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053,

1061 (9th Cir. 2004). That is the case here.

Three structural features of the CPAB, taken together,

legally make its members public surrogates of the appointing

councilperson. First, each councilperson appoints one

member to the board. Second, that councilperson can

remove her appointee at her discretion. Third, the CPAB’s

purpose is to advise about public policy—its legal duty is to

interface with the City Council’s constituents and make

recommendations concerning an important government

function. Under these circumstances, which flow directly

from the municipal code, an elected official is allowed to

“distance” herself from an appointee who might be a

political liability. Blair, 608 F.3d at 545. That conclusion

would not be altered by an amendment to Lathus’s

complaint. Even if Lathus were to assert in an amended

pleading that her actual duties varied from the role of the

CPAB as described in the municipal code, “the relevant

focus of analysis is the inherent duties of the position in

question, not the work actually performed by the person who

happens to occupy the office.” Biggs v. Best, Best &

Krieger, 189 F.3d 989, 997 (9th Cir. 1999) (cleaned up).

AFFIRMED.