upholding the California Office of Attorney General's policy that employees obtain permission prior to engaging in the private practice of law
How later courts described this case
- upholding the California Office of Attorney General's policy that employees obtain permission prior to engaging in the private practice of law
- denying attorney’s fees because the plaintiffs claims “raised a question that was not answered clearly by [Ninth Circuit] precedent”
- matter of public concern included statements about “discharges of raw sewage into the environment and exposure of public employees to dangerous contaminants”
- “Because Plaintiffs raised a 9 question that was not answered clearly by our precedent, we hold that their claim was not 10 frivolous.”
Written by the judges who cited it.
The opinion
CLIFTON, Circuit Judge,
concurring in part and dissenting in part:
I fully join most of the majority opinion. My only disagreement concerns the award *930 of attorneys’ fees. I share the view of the district court that the lawsuit filed by Plaintiffs was, in substantial part, frivolous and would thus affirm the award.
A legal proposition can be frivolous even though this court has not previously rejected it. The contention that the First Amendment guarantees a lawyer employed by the government the right to file and pursue a private legal malpractice action on behalf of another person is such a proposition. Plaintiffs cite no authority supporting that proposition or any reasonable analogy. We might not have gone down this trail before, but it was not a hard trail to blaze.
The majority opinion justifies its reversal of the fee award by observing, at 927, that our circuit did not have precedent similar to the D.C. Circuit’s per curiam decision in Williams v. IRS, 919 F.2d 745 (D.C.Cir.1990). But our court did have ample precedent on the question of whether Plaintiffs’ speech here was constitutionally protected, and we had no difficulty concluding that it was not. See majority opinion at 925-26. We reached the Williams issue as an alternative ground for decision, by assuming that the speech in question was constitutionally protected, though we had already held to the contrary. See majority opinion at 927 (“even if we were to credit Plaintiffs’ assertion that they spoke on an issue of public concern, thereby meeting the threshold for protected speech”). Plaintiffs’ First Amendment claim was plainly without merit, separate and apart from the Williams issue.
The district court did not abuse its discretion in finding that claim frivolous. On that element, I respectfully dissent.