                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAR 26 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOSEPH RYAN,                                     No. 18-15232

              Plaintiff-Appellee,                D.C. No. 5:16-cv-04032-LHK

 v.
                                                 MEMORANDUM*
ROBERT FABELA, VTA General
Counsel, in his individual capacity and in
his official capacity,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                      Lucy H. Koh, District Judge, Presiding

                       Argued and Submitted March 15, 2019
                            San Francisco, California

Before: W. FLETCHER, WATFORD, and HURWITZ, Circuit Judges.

      Robert Fabela appeals the district court’s denial of summary judgment on

the basis of qualified immunity in Joseph Ryan’s action against him under 42

U.S.C. § 1983. Ryan contends he was fired from his position as senior assistant

counsel within the General Counsel’s office of a regional transportation agency in

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
retaliation for his First Amendment-protected speech. We have jurisdiction under

28 U.S.C. § 1291 and we reverse. See Moran v. Washington, 147 F.3d 839, 843

(9th Cir. 1998).

      “[Q]ualified immunity shields public officials from liability insofar as their

conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Biggs v. Best, Best & Krieger, 189

F.3d 989, 993 (9th Cir. 1999) (internal quotations omitted). “[W]hether a

government official is entitled to qualified immunity is a two-part inquiry: (1)

whether the facts alleged, taken in the light most favorable to the party asserting

the injury, show that the official’s conduct violated a constitutional right; and (2)

whether that right was clearly established ‘in light of the specific context of the

case.’” Clairmont v. Sound Mental Health, 632 F.3d 1091, 1100 (9th Cir. 2011)

(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). We may begin our analysis

with either prong. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

      A government employer “[o]rdinarily . . . cannot fire or retaliate against an

employee for his political opinions, memberships, or activities.” Bardzik v. Cty. of

Orange, 635 F.3d 1138, 1144 (9th Cir. 2011). However, under the “policymaker

exception,” “an employer may fire a public employee for purely political reasons if

the employer can demonstrate that political considerations are ‘appropriate

requirement[s] for the effective performance’ of the job.” Fazio v. City & Cty. of

                                           2
San Francisco, 125 F.3d 1328, 1332 (9th Cir. 1997) (quoting Branti v. Finkel, 445

U.S. 507, 518 (1980)). Under Ninth Circuit law “an employee’s status as a

policymaking or confidential employee [is] dispositive of any First Amendment

retaliation claim.” Biggs, 189 F.3d at 994–95.

      We hold that a reasonable official in Fabela’s position might have concluded

that Ryan was a policymaker, and that Fabela is therefore entitled to qualified

immunity. See Hunt v. Cty. of Orange, 672 F.3d 606, 615 (9th Cir. 2012). The

policymaker inquiry is multi-factor and fact-intensive. See id. at 616. Here, no

case is sufficiently analogous to have put Fabela on notice that Ryan’s position as

senior assistant counsel would fall outside the policymaker exception. We do not

decide whether Ryan was a policymaker as a matter of law, only that his right not

to be fired for political considerations was not “clearly established in light of the

specific context of the case.” Clairmont, 632 F.3d at 1100. We accordingly

reverse the district court’s denial of summary judgment and remand for entry of

judgment in Fabela’s favor.

      REVERSED AND REMANDED.1




      1
         The motion by the League of California Cities, California State Association
of Counties & International Municipal Lawyers Association for leave to file amici
brief in support of Fabela (Dkt. 21) is GRANTED.
                                           3
