The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 23 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY RYAN, M.D., an individual, No. 22-55144
Plaintiff-Appellee, D.C. No.
2:17-cv-05752-CAS-RAO
v.
BRANT PUTNAM, M.D., an individual; MEMORANDUM*
JANINE VINTCH, M.D., an individual,
Defendants-Appellants,
and
ANISH MAHAJAN, M.D.; et al.,
Defendants.
TIMOTHY RYAN, M.D., an individual, No. 22-55406
Plaintiff-Appellee, D.C. No.
2:17-cv-05752-CAS-RAO
v.
CHRISTIAN DE VIRGILIO, M.D.; ROGER
LEWIS, M.D.,
Defendants-Appellants,
and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
BRANT PUTNAM, M.D., an individual; et
al.,
Defendants.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted June 6, 2023
Pasadena, California
Before: WALLACE and OWENS, Circuit Judges, and FITZWATER,** District
Judge.
Concurrence by Judge FITZWATER.
Defendants Brant Putnam, Janine Vintch, Roger Lewis, and Christian de
Virgilio appeal from the district court’s two denials of summary judgment on their
qualified immunity defense to Timothy Ryan’s 42 U.S.C. § 1983 action against
them. Ryan claims Defendants violated his First Amendment rights by retaliating
against his employment for reporting medical fraud. Because the parties are
familiar with the facts, we do not recount them here. We affirm the denial of
qualified immunity.
We review summary judgment rulings de novo. Dodge v. Evergreen Sch.
Dist. #114, 56 F.4th 767, 776 (9th Cir. 2022). On interlocutory appeal of the
**
The Honorable Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
2
denial of summary judgment on a qualified immunity defense, our jurisdiction is
limited to resolving legal questions. See Plumhoff v. Rickard, 572 U.S. 765, 771-
73 (2014). “Where disputed facts exist, we assume that the version of the material
facts asserted by the Plaintiff . . . is correct.” Eng v. Cooley, 552 F.3d 1062, 1067
(9th Cir. 2009) (cleaned up).
Defendants are not entitled to qualified immunity if their conduct violated
Ryan’s First Amendment rights and constituted a violation of clearly established
law at the time of the incidents. District of Columbia v. Wesby, 138 S. Ct. 577, 589
(2018). Clearly established law exists if precedent placed the unconstitutionality
of the conduct “beyond debate.” White v. Pauly, 580 U.S. 73, 78-79 (2017).
1. To establish a First Amendment retaliation claim, Ryan must show
that his protected speech motivated Defendants to take an adverse employment
action against him. Eng, 552 F.3d at 1070. Defendants assert that they are entitled
to qualified immunity because there is no clearly established law showing that
Ryan suffered an adverse employment action. However, we have previously held
that a peer review committee’s investigation of a doctor that threatened to revoke
his clinical privileges was an adverse employment action. See Ulrich v. City &
Cnty. of S.F., 308 F.3d 968, 977 (9th Cir. 2002). Thus, the initiation of the
Focused Professional Performance Evaluation (“FPPE”) of Ryan was an adverse
employment action under clearly established law. The decision to impose a
3
behavioral contract and revoke clinical privileges in the alternative was also an
adverse employment action under clearly established law. The revocation of
clinical privileges will necessarily result in termination, a quintessential adverse
employment action. See Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir.
2000).
Defendants argue that these actions are not sufficiently final to constitute
adverse employment actions because the FPPE would not necessarily result in
discipline and the decision to revoke privileges was subject to appeal. But we have
previously held that actions for which the disciplinary outcome is uncertain—such
as an investigatory inquiry—are adverse employment actions. See, e.g., Poland v.
Chertoff, 494 F.3d 1174, 1180 (9th Cir. 2007).
Defendants also contend that the actions against Ryan are not attributable to
them under clearly established law because their only action was voting as
members of the Medical Executive Committee. However, we have previously
explained in this context that “[a]nyone who ‘causes’ any citizen to be subjected to
a constitutional deprivation is . . . liable,” and that the “requisite causal connection
can be established not only by some kind of direct personal participation in the
deprivation, but also by setting in motion a series of acts by others which the actor
knows or reasonably should know would cause others to inflict the constitutional
4
injury.” Dahlia v. Rodriguez, 735 F.3d 1060, 1078 n.22 (9th Cir. 2013) (en banc)
(citations omitted).
2. To succeed in his claim, Ryan must also show that he spoke as a
private citizen instead of as a public employee. See Garcetti v. Ceballos, 547 U.S.
410, 421 (2006). Defendants contend that they are entitled to qualified immunity
because there is no clearly established law showing that Ryan spoke as a private
citizen. “Statements are made in the speaker’s capacity as [a private] 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 v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1127 n.2 (9th Cir.
2008) (cleaned up).
Whether Ryan spoke as a private citizen depends on what his employment
duties required, which is a factual dispute. See Ellins v. City of Sierra Madre, 710
F.3d 1049, 1058-59 (9th Cir. 2013). Defendants contend that Ryan conceded that
his speech was within the scope of his job by asking the county to indemnify him
in Rodney White’s lawsuit. However, the speech at issue here is Ryan’s external
reports of fraud to the District Attorney’s office and the National Institutes of
Health, which Ryan argues was not part of his job. Resolving this factual dispute
in Ryan’s favor, as we must, Eng, 552 F.3d at 1067, reporting suspected fraud
externally was beyond the scope of his employment as a physician. And by the
5
time of the adverse employment actions, it was clearly established that speech by a
public employee “not made pursuant to [their] official job duties” is made in their
capacity as a private citizen. Karl v. City of Mountlake Terrace, 678 F.3d 1062,
1074 (9th Cir. 2012).
3. Even where speech would otherwise be protected, Defendants can
defeat Ryan’s claim by demonstrating that their “legitimate administrative interests
outweigh [Ryan’s] First Amendment rights” and the public’s interest in Ryan’s
speech. Eng, 552 F.3d at 1071; see City of San Diego v. Roe, 543 U.S. 77, 82
(2004). Here, Defendants assert that they are entitled to qualified immunity
because there is no clearly established law showing that Ryan’s interests outweigh
theirs.
We have previously held that the interests of the public employee and the
public in whistleblower speech outweigh the employer’s interest where the
employer shows only the potential for disturbance in the workplace. See Robinson
v. York, 566 F.3d 817, 824 (9th Cir. 2009). Here, Defendants have shown no
interest in suppressing Ryan’s whistleblower speech because they do not argue that
Ryan’s reports of fraud caused disruption or affected patient care. Instead, they
argue that their actions were justified by complaints of Ryan’s unprofessional
behavior largely unrelated to his reports of fraud. But the balancing inquiry does
not allow public employers to suppress speech due to the speaker’s other conduct.
6
See Moser v. Las Vegas Metro. Police Dep’t, 984 F.3d 900, 910 (9th Cir. 2021)
(noting that the proper inquiry is whether the speech in question threatened the
employer’s interests).
Because Defendants presented no argument that Ryan’s whistleblowing
itself harmed or would harm their interests, that they lose in the balancing analysis
is “beyond debate” and therefore clearly established. Pauly, 580 U.S. at 79.
Whether Defendants would have taken the same adverse employment
actions regardless of Ryan’s whistleblowing is a separate question on which we
express no opinion because it is not before us.
AFFIRMED.
7
FILED
Ryan v. Putnam, 22-55144, 22-55406 JUN 23 2023
MOLLY C. DWYER, CLERK
FITZWATER, District Judge, concurring: U.S. COURT OF APPEALS
Considering the district court’s decision in light of the record before it, and our
limited appellate jurisdiction, see, e.g., Russell v. Lumitap, 31 F.4th 729, 736 (9th Cir.
2022), I concur in the panel’s decision to affirm the denial of qualified immunity for
Defendants-Appellants. I write separately to emphasize that our affirmance does not
remove qualified immunity from consideration on remand. In the words of another
panel of this court, “[t]he result of our affirmance on this interlocutory appeal of the
district court’s denial of summary judgment motion based upon qualified immunity
is to return the qualified immunity issue to the district court for determination on its
merits. We express no view on those merits here . . . .” Thompson v. Mahre, 110 F.3d
716, 719 n.1 (9th Cir. 1997) (emphasis omitted) (quoting Thompson v. Mahre and
Steen, 959 F.2d 241 (9th Cir. 1992) (mem.)).