Argued and Submitted March 20, 2013.
[Copyrighted Material Omitted]
Michael A. Morguess (argued), Michael A. McGill, and Russell M. Perry of Lackie, Dammeier & McGill, Upland, CA; Scott Michelman and Scott L. Nelson, Public Citizen Litigation Group, Washington, D.C., for Plaintiff-Appellant Angelo Dahlia.
Steven J. Renick (argued) and Eugene P. Ramirez of Manning & Kass, Ellrod, Ramirez, Trester, LLP, Los Angeles, CA, for Defendant-Appellee Jon Murphy.
Ken Yuwiler and Michael Simidjian of Silver, Hadden, Silver, Wexler & Levine, Santa Monica, CA, for Defendant-Appellee Omar Rodriguez.
Michael Logan Rains, Harry S. Stern, and Lara Cullinane-Smith of Rains, Lucia, Stern, PC, Pleasant Hill, CA, for Defendant-Appellee Edgar Penaranda.
Richard R. Terzian of Burke, Williams & Sorensen, LLP, Los Angeles, CA, for Defendant-Appellee City of Burbank.
Michael P. Stone and Muna Busailah of Riverside Sheriffs' Association Legal Defense Trust, Pasadena, CA, for Amicus Curiae Riverside Sheriffs' Association and Riverside Sheriffs' Association Legal Defense Trust.
Appeal from the United States District Court for the Central District of California, Margaret M. Morrow, District Judge, Presiding. D.C. No. 2:09-cv-08453-MMM-JEM.
Before: ALEX KOZINSKI, Chief Judge, and HARRY PREGERSON, STEPHEN REINHARDT, DIARMUID F. O'SCANNLAIN, SUSAN P. GRABER, RICHARD A. PAEZ, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, CONSUELO M. CALLAHAN, CARLOS T. BEA, and MILAN D. SMITH, JR., Circuit Judges.
Opinion by Judge PAEZ; Concurrence by Judge PREGERSON; Concurrence by Judge O'SCANNLAIN.
PAEZ, Circuit Judge:
In this case we address the extent to which a police officer retains First Amendment protection when he discloses his fellow officers' misconduct. Angelo Dahlia, a detective in the Burbank Police Department (" BPD" ), brought this 42 U.S.C. § 1983 First Amendment retaliation suit against the City of Burbank, the Chief of Police and several other police officers. The district court granted the defendants' motions to dismiss the § 1983 cause of action for failure to state a claim. Fed.R.Civ.P. 12(b)(6). The court reasoned that, under Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir.2009), Dahlia's disclosure to the Los Angeles Sheriff's Department (" LASD" ) of his fellow officers' misconduct was not subject to First Amendment protection because he had a professional duty, as a matter of California case law, to report misconduct. The district court also held that Dahlia's placement on administrative leave did not constitute an " adverse employment action."
We reverse the district court on both grounds and overrule Huppert. We hold that (1) after Garcetti v. Ceballos, 547 U.S. 410, 424, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), courts must make a " practical" inquiry when determining the scope of a government employee's professional duties and that Huppert erred in concluding that California broadly defines police officers' duties as a matter of law for the purpose of First Amendment retaliation analysis; and (2) placement on administrative leave can constitute an adverse employment action. We further hold that, on remand, Dahlia may renew his request for leave to amend his complaint to allege more explicitly which acts are protected by the First Amendment and which acts constitute adverse employment actions.
I. FACTUAL AND PROCEDURAL BACKGROUND
Following an armed robbery on December 28, 2007, at Porto's Bakery & Café in Burbank, California, Dahlia was assigned to assist in the robbery investigation, which was supervised by defendant Lieutenant Jon Murphy. The day after the robbery, Dahlia observed defendant Lieutenant Omar Rodriguez grab a suspect by the throat with his left hand, retrieve his handgun from its holster with his right hand, and place the barrel of the gun under the suspect's eye, saying, " How does it feel to have a gun in your face motherfucker." Rodriguez noticed Dahlia looking on in disbelief. Later that same evening, Dahlia heard yelling and the sound of
someone being hit and slapped from inside a room where defendant Sergeant Edgar Penaranda was interviewing another suspect.
Dahlia was subsequently excluded from participating in suspect interviews, and high-ranking officers within BPD essentially took control of the investigation. Witnesses and suspects continued to be physically assaulted and beaten in BPD's interview rooms, while officers prevented anyone from walking past the rooms or into the audio room. Dahlia met with Murphy to disclose the abuse that he had witnessed. Dahlia told Murphy that the interviews were getting too physical and that Dahlia was having difficulty maintaining order in the investigation. Murphy responded by telling Dahlia to " stop his sniveling."
The physical beatings continued in BPD interview rooms and in the field, evidenced by the booking photos of various suspects. At one point, Chief of Police Stehr appeared at a briefing and, upon learning that not all of the robbery suspects were in custody, said, " Well then beat another one until they are all in custody."
After witnessing the misconduct and abuse, Dahlia approached Murphy a second time and pleaded that he did not have control over the case. Murphy became upset and told Dahlia that he " didn't want to hear this shit again" and that he was " tired of all the B.S." In January 2008, Dahlia and another detective met with Murphy a third time, telling him that " the beatings have to stop" and " the madness ha[s] to stop." Murphy did nothing to respond to these complaints and the abusive tactics continued.
In April 2008 officers learned that BPD's Internal Affairs (" IA" ) unit was planning to investigate the unlawful physical abuse and the other illegal procedures relating to the Porto's robbery investigation. Around the same time, Rodriguez began going out of his way to monitor Dahlia and ultimately threatened him not to say anything to IA. As the IA investigation grew nearer, Rodriguez and Penaranda contacted Dahlia on a daily basis, threatening him to keep quiet. Before the IA investigation commenced, Chief Stehr told an IA lieutenant, " I put you in this position to make it go away."
On April 29, 2008, Dahlia was interviewed for the first time by IA. Immediately after the interview, Rodriguez confronted Dahlia and demanded to know what Dahlia had said during the interview. Dahlia's complaint is silent regarding what he actually said during the IA interview, though he told Rodriguez, out of fear, that he did not say anything to IA. When asked by Penaranda if he had disclosed anything to IA, Dahlia, out of fear for his safety, also told Penaranda that he had not.
On May 8, 2008, IA interviewed Dahlia a second time. After the interview, Dahlia received a call from Rodriguez directing him to report to a park. Dahlia went to the park, believing that there was an incident occurring, but encountered only Rodriguez and another officer there. Rodriguez approached him aggressively and asked, " What the fuck did you tell them?" Rodriguez then asked, almost verbatim, the questions posed by IA and attempted to intimidate Dahlia into revealing his answers. Rodriguez, Penaranda and another officer incessantly harassed, intimidated and threatened Dahlia over the following weeks, to the point where his working conditions were " fully consumed" by the intimidation.
On May 21, 2008, IA interviewed Dahlia a third time. Immediately after the interview, Rodriguez appeared and aggressively stared directly at Dahlia. The threats and intimidation continued during the subsequent months. Toward the end of 2008, Penaranda and Murphy told Dahlia that a federal investigation into the Porto's robbery might be forthcoming and warned Dahlia not to disclose anything to federal investigators. In January 2009, rumors circulated more widely that the FBI had been contacted about commencing an investigation. At some point, Murphy told Dahlia, " It's on. The Feds are doing an investigation and heads are going to roll. Don't say anything." Penaranda told Dahlia, " It's gonna be bad. You can't say anything." Rodriguez also approached Dahlia and told him " not to talk to the feds." The complaint alleges neither that the FBI actually commenced an investigation nor that Dahlia ever spoke to the FBI.
On April 2, 2009, Rodriguez called Dahlia into his office, told Dahlia to sit down, and closed the door and the blinds. Rodriguez then retrieved his gun from its holster, looked at Dahlia, and placed the gun in a drawer. At one point during the meeting, Rodriguez placed his hands on the desk and told Dahlia, " I'm not a fucking cheese eating rat" and then commented that he was not afraid of being suspended or fired. Rodriguez also leaned forward and said, " Fuck with me and I will put a case on you, and put you in jail. I put all kinds of people in jail, especially anyone who fucks with me!" Dahlia reported this incident to the Burbank Police Officers' Association president, who reported it to the Burbank City Manager.
On May 11, 2009, LASD interviewed Dahlia about the Porto's robbery investigation. During the interview, Dahlia disclosed the defendants' misconduct, threats, intimidation and harassment. Four days later, Dahlia was placed on administrative leave pending discipline.
Dahlia alleges that he was subjected to adverse employment actions as a result of his protected speech activities and that there was no legitimate justification for the adverse actions. In alleging a § 1983 violation, Dahlia claims that defendants' retaliatory acts included, inter alia, threats, ostracism, denial of employment opportunities, undue scrutiny of work performance, denial of continued employment, and malicious statements calculated to destroy his reputation.
Dahlia filed his § 1983 complaint in November 2009, alleging seven claims: (1) retaliation against a public employee for speech disclosing police misconduct, in violation of the First Amendment; (2) retaliation against a public employee for disclosing information to a government or law enforcement agency, in violation of California Labor Code section 1102.5; (3) retaliation against a public employee for making an oral or written complaint to a governmental agency, in violation of California Labor Code section 6310; (4) retaliation against a public employee for disclosing an abuse of authority or a substantial and specific danger to public health or safety, in violation of California Government Code section 53298; (5) a violation of the Bane Act, California Civil Code section 52.1(b), which prohibits interference with the exercise of constitutional rights; (6) intentional infliction of emotional distress; and (7) negligent infliction of emotional distress. Dahlia sued the City of Burbank, Police Chief Stehr, Lieutenants Murphy and Rodriguez, Sergeants Penaranda and Jose Duran, and Detective Chris Canales.
Police Chief Stehr moved for summary judgment on several grounds, including qualified immunity. The district court denied
without prejudice, as premature, Stehr's summary judgment motion because Dahlia had not yet had an adequate opportunity to conduct discovery. Stehr pursued an interlocutory appeal of the district court's denial of his motion for summary judgment. The original three judge panel in this case reversed the denial of qualified immunity for Stehr in an unpublished memorandum disposition. Dahlia v. Stehr, 491 Fed.Appx. 799 (9th Cir.2012).
The remaining individual defendants moved, primarily relying on Huppert, to dismiss the case for failure to state a claim. Fed.R.Civ.P. 12(b)(6). Granting these motions, the district court determined that Dahlia's § 1983 claim was barred because (1) he spoke pursuant to his official duties and thus was not constitutionally protected, and (2) placement on paid administrative leave is not an adverse employment action. The district court accordingly dismissed Dahlia's § 1983 claim with prejudice, and declined to exercise supplemental jurisdiction over Dahlia's state law claims.
A panel of this court reluctantly affirmed on the ground that it was bound by Huppert v. City of Pittsburg to conclude that Dahlia spoke pursuant to his official duties. Dahlia v. Rodriguez, 689 F.3d 1094 (9th Cir.2012). In no uncertain terms, the panel stated that " [t]he reasoning in Huppert that professional duties can be determined as a matter of law is wrong, and the result that reports of police misconduct are not protected by the First Amendment is dangerous." Id. at 1106-07. Contrary to the district court, the panel found that placement on administrative leave and the resulting consequences, " if proven, ... may very well constitute an adverse employment action." Id. at 1107. Upon a majority vote of eligible judges, we granted rehearing en banc.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291 to review the district court's final judgment dismissing with prejudice Dahlia's claims against Murphy, Penaranda, Rodriguez and the City of Burbank. We review de novo the district court's dismissal of Dahlia's complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). In undertaking this review, " we must accept all factual allegations of the complaint as true and draw all reasonable inferences in favor of the nonmoving party." TwoRivers, 174 F.3d at 991. Dismissal under Rule 12(b)(6) is inappropriate unless Dahlia's complaint fails to " state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
" It is well settled that the state may not abuse its position as employer to stifle ‘ the First Amendment rights [its employees] would otherwise enjoy as citizens to comment on matters of public interest.’ " Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009) (alteration in original) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). Moreover, the public has a strong interest in hearing from public employees, especially because " [g]overnment employees are often in the best position to know what ails the agencies for which they work."
Waters v. Churchill, 511 U.S. 661, 674, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994). It may often be the case that, unless public employees are willing to blow the whistle, government corruption and abuse would persist undetected and undeterred.
In Pickering, the Supreme Court defined a balancing test for First Amendment retaliation cases involving public employees. The task for us is to seek " a 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." Pickering, 391 U.S. at 568, 88 S.Ct. 1731; see also Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The Court has recognized that " the First Amendment interests at stake extend beyond the individual speaker ... [because of] the importance of promoting the public's interest in receiving the well-informed views of government employees engaging in civic discussion." Garcetti, 547 U.S. at 419, 126 S.Ct. 1951. In the classic whistleblower case the state has no legitimate interest in covering up corruption and physical abuse. As an inevitable result of the Court's jurisprudence and sound public policy, the First Amendment generally protects public employee whistleblowers from employer retaliation.
But our inquiry does not end there. In unraveling the case law since Pickering, we have further refined the Court's balancing test into a five-step inquiry. We ask:
(1) whether the plaintiff 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 public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.
Eng, 552 F.3d at 1070.
In this case, we can easily answer the first question. Dahlia's speech— reporting police abuse and the attempts to suppress its disclosure— is quintessentially a matter of public concern. See Connick, 461 U.S. at 148, 103 S.Ct. 1684 (noting that speech warrants protection when it " seek[s] to bring to light actual or potential wrongdoing or breach of public trust" ); Thomas v. City of Beaverton, 379 F.3d 802, 809 (9th Cir.2004) (finding that " [u]nlawful conduct by a government employee or illegal activity within a government agency is a matter of public concern" ); see also Jackler v. Byrne, 658 F.3d 225, 236 (2d Cir.2011) (noting that " ‘ [e]xposure
of official misconduct, especially within the police department, is generally
of great consequence to the public "
(quoting Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir.2001))), cert. denied,
__ U.S. __, 132 S.Ct. 1634, 182 L.Ed.2d 233 (2012); Marable v. Nitchman, 511 F.3d 924, 932 (9th Cir.2007) (finding it " worth noting that an employee's charge of high level corruption in a government agency has all of the hallmarks that we normally associate with constitutionally protected speech ... and criticisms of the government lie at or near the core of what the First Amendment aims to protect" ).
The district court, however, ruled that Dahlia's § 1983 First Amendment claim was barred because it found that (1) as a matter of law, Dahlia could not establish that he spoke " in the capacity of a private citizen and not a public employee," Eng, 552 F.3d at 1071; and (2) being placed on administrative leave does not constitute an adverse employment action for the purposes of the First Amendment. We disagree with both conclusions and analyze them in turn.
A. Speech as a Private Citizen
In Garcetti, the Supreme Court narrowed the First Amendment protections for public employees. 547 U.S. 410, 126 S.Ct. 1951. The Court added an additional requirement to the Pickering balancing test, holding that the First Amendment does not protect employee speech when that speech is " pursuant to ... official duties." Id. at 421, 126 S.Ct. 1951. This requirement is captured by the second prong of our test set forth in Eng, 552 F.3d at 1070. Whether Dahlia's speech is protected by the First Amendment is rooted in the Court's analysis in Garcetti.
In Garcetti, plaintiff Ceballos was a deputy district attorney for Los Angeles County assigned as a calendar deputy during the relevant period. 547 U.S. at 413, 126 S.Ct. 1951. A defense attorney contacted Ceballos and asked him to investigate inaccuracies in a critical police affidavit. Id. " According to Ceballos, it was not unusual for defense attorneys to ask calendar deputies to investigate aspects of pending cases." Id. at 414, 126 S.Ct. 1951. After investigating the alleged inaccuracies, " Ceballos determined the affidavit contained serious misrepresentations," which he reported to his supervisor. Id. He " followed up by preparing a disposition memorandum" and an additional memo to his supervisor. Id. After a heated meeting attended by Ceballos, his supervisor and the affiant, the supervisor decided to proceed with the prosecution. Id. Ceballos brought a § 1983 First Amendment retaliation claim challenging the imposition of adverse employment actions in the aftermath of these events. Id. at 415, 126 S.Ct. 1951.
In rejecting Ceballos' claim, the Court held that, " when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 421, 126 S.Ct. 1951. The Court said that " [t]he controlling factor in Ceballos' case is that his expressions were made pursuant to his duties as a calendar deputy." Id. Importantly, the Court noted that " the parties in this case do not dispute that Ceballos wrote his disposition memo pursuant
to his employment duties. We thus have no occasion to articulate a comprehensive framework for defining the scope of an employee's duties in cases where there is room for serious debate." Id. at 424, 126 S.Ct. 1951.
The Court further explained that various easy heuristics are insufficient for determining whether an employee spoke pursuant to his professional duties. The Court said that it was " not dispositive" that " Ceballos expressed his views inside his office, rather than publicly.... Employees in some cases may receive First Amendment protection for expressions made at work." Id. at 420, 126 S.Ct. 1951. It was also " nondispositive" that " [t]he memo concerned the subject matter of Ceballos' employment.... The First Amendment protects some expressions related to the speaker's job." Id. at 421, 126 S.Ct. 1951. Additionally, the Court rejected " the suggestion that employers can restrict employees" rights by creating excessively broad job descriptions. Id. at 424, 126 S.Ct. 1951. The Court concluded:
The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes.
Id. at 424-25, 126 S.Ct. 1951 (citation omitted).
Three years after Garcetti, a panel of this court decided
Huppert v. City of Pittsburg, another § 1983 First Amendment retaliation case. The Huppert majority affirmed the grant of summary judgment to the defendant, holding that California police officers acted pursuant to their official duties when they investigated and reported on corruption within the police department by (1) assisting the District Attorney as ordered, (2) defying the police chief's orders and continuing an investigation at the behest of an immediate supervisor, (3) cooperating with the FBI, and (4) testifying before a grand jury. 574 F.3d at 698-700, 703, 706-08.
Although the Huppert majority engaged in the requisite " practical" inquiry in determining that the officers acted pursuant to their official duties as to the first two speech acts, id. at 703-06, it relied on a 1939 California court of appeal decision to conclude, as a matter of law, that an officer acted pursuant to his official duties in cooperating with the FBI and testifying before a grand jury, id. at 706-10 ...