     Case: 17-41243   Document: 00514794828        Page: 1   Date Filed: 01/14/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                    No. 17-41243                         FILED
                                                                  January 14, 2019
                                                                    Lyle W. Cayce
BRUCE M. ANDERSON,                                                       Clerk

             Plaintiff - Appellee

v.

ROGELIO VALDEZ, In his Individual and Official Capacities,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Bruce Anderson’s job required an oath to report judicial misconduct. He
now complains of retaliation for doing so—in violation of the First Amendment.
That Anderson’s job-imposed duty to report wrongdoing did not strip his speech
of First Amendment protection has since gained clarity, but this was not
clearly established in May 2014, when the events he complained of occurred.
We therefore reverse the district court’s denial of qualified immunity and
summary judgment.
                                         I
      Anderson was a briefing attorney for Justice Rose Vela on Texas’s
Thirteenth Court of Appeals. In 2011, Vela and another justice on the court,
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Gregory Perkes, unsuccessfully sought an audit of a court fund controlled by
the court’s Chief Justice, Rogelio Valdez. Vela later told Anderson that she had
obtained     records   suggesting   that       Valdez    was      collecting   duplicative
reimbursements from the court fund and his personal campaign fund. Vela did
not ask Anderson to report the potential double reimbursements, and neither
Vela nor Perkes reported them; Vela said that she did not plan to do so because
“it would look too political”—she was seeking the job of Chief Justice.
         Anderson decided to report the double reimbursements, sending a letter
marked confidential in October 2012 to the Chief Justice of the Texas Supreme
Court. The Supreme Court’s general counsel directed him to the State
Commission on Judicial Conduct, which told Anderson it would investigate.
The Public Integrity Unit of the Travis County District Attorney’s Office also
opened a case file. After Vela’s term expired and Anderson was no longer a
court employee, Anderson wrote to the Public Integrity Unit, in April 2013 and
April 2014, with additional information.
         In 2014, Perkes offered Anderson employment as senior staff attorney,
over the objections of another justice of the court who expressed concerns about
Anderson’s work product, depth of knowledge, and workplace attitude. When
Chief Justice Valdez learned that Perkes had hired Anderson, he told Perkes
that hiring Anderson was a “bad idea” and suggested that he consult with the
other justices—an unusual measure, since justices typically made their own
hiring decisions. After Valdez told Perkes in May 2014 that he and the other
justices did not approve of Anderson’s hiring, Perkes rescinded Anderson’s
offer.
         Anderson sued Valdez in his individual and official capacities, arguing
that Valdez intervened in Anderson’s hiring as retaliation for the complaint.
The parties engage on whether, at the time of these events, Valdez knew that
Anderson had filed his complaint with the State Commission on Judicial
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Conduct; they also dispute whether the reasons given by Valdez and the other
justices for not hiring Anderson were pretextual. 1 Valdez moved to dismiss,
asserting that as Anderson’s general professional obligations as a lawyer
required his report of judicial misconduct, he spoke pursuant to his official
duties in filing the complaint with the State Commission on Judicial Conduct—
and that his speech was therefore not protected by the First Amendment. We
affirmed the district court’s denial of Valdez’s motion to dismiss, holding that
Anderson’s general professional duties as a lawyer were not “official duties”
that would transform the constitutionally protected speech of a citizen into the
unprotected speech of a public employee. 2 While Anderson had sufficiently
alleged a First Amendment retaliation claim to survive a motion to dismiss, we
allowed for the possibility that facts would come to light at the summary
judgment phase undermining Anderson’s allegations or implicating legal
principles that were not yet clearly established as of May 2014. 3
       Valdez now brings this interlocutory appeal 4 from the district court’s
denial of his motion for summary judgment. While Anderson I binds us in
certain respects, this appeal presents a different issue. Valdez no longer argues
that Anderson spoke in discharge of the general obligation of a lawyer to report
judicial misconduct. He now argues that Anderson was specifically bound by
the Texas Code of Judicial Conduct, which requires judges—and by
incorporation, their staff—to report judicial misconduct to the State
Commission on Judicial Conduct. He contends that Anderson spoke pursuant



       1 On this appeal, Valdez argues that there is no genuine dispute as to whether he was
aware of the complaint, and Anderson argues that there is sufficient circumstantial evidence
to support a finding that Valdez knew about it. We do not consider this issue.
       2 Anderson v. Valdez (Anderson I), 845 F.3d 580 (5th Cir. 2016).
       3 Id. at 602.
       4 “Although a denial of summary judgment is typically unappealable, defendants have

a limited ability to appeal a denial of qualified immunity under the collateral order doctrine.”
Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 467 (5th Cir. 2014) (emphasis omitted).
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to this “official duty,” and under Garcetti v. Ceballos 5 his speech was
unprotected.
                                             II
       When reviewing an interlocutory appeal of a district court’s denial of
summary judgment on qualified immunity grounds, we “consider only whether
the district court erred in assessing the legal significance of the conduct that
the district court deemed sufficiently supported for purposes of summary
judgment.” 6 And we do so in the shadow of the defendant’s defense of qualified
immunity. Qualified immunity “protects all but the plainly incompetent or
those who knowingly violate the law.” 7 To overcome a defendant’s assertion of
qualified immunity on summary judgment, “a plaintiff must show that the
evidence, viewed in the light most favorable to him, is sufficient to establish a
genuine dispute ‘(1) that the official violated a statutory or constitutional right,
and (2) that the right was clearly established at the time of the challenged
conduct.’” 8
       The Supreme Court has explained that “[a] clearly established right is
one that is ‘sufficiently clear that every reasonable person would have
understood that what he is doing violates that right.’” 9 While a plaintiff seeking
to overcome qualified immunity need not present “a case directly on point,”
“existing precedent must have placed the statutory or constitutional question
beyond debate,” 10 reflecting the principle that we are “not to define clearly


       5 547 U.S. 410, 417 (2006).
       6 Cutler, 767 F.3d at 469 (quoting Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004)
(en banc)).
       7 Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc) (quoting Malley v.

Briggs, 475 U.S. 335, 341 (1986)).
       8 Cutler, 767 F.3d at 469 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011))

(internal quotation marks omitted).
       9 Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Reichle v. Howards, 566 U.S.

658, 664 (2012)).
       10 Id. (quoting al-Kidd, 563 U.S. at 741).

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established law at a high level of generality,” but rather are to pay close
attention to “the specific context of the case.” 11
                                           III
      We conclude that Valdez is entitled to qualified immunity. It was not
clearly established as of May 2014 that where a briefing attorney swore as part
of his employment to comply with a code of conduct requiring him to report
judicial misconduct to a specific state authority, he nonetheless spoke as a
citizen in reporting a judge to that authority.
                                            A
      “[P]ublic employees do not surrender all their First Amendment rights
by reason of their employment.” 12 Instead, “the First Amendment protects a
public employee’s right, in certain circumstances, to speak as a citizen
addressing matters of public concern.” 13 This right is not absolute, because
“[w]hen a citizen enters government service, the citizen by necessity must
accept certain limitations on his or her freedom.” 14 Therefore, “[t]o establish a
§ 1983 claim for employment retaliation related to speech, a plaintiff-employee
must show: (1) he suffered an adverse employment action; (2) he spoke as a
citizen on a matter of public concern; (3) his interest in the speech outweighs
the government’s interest in efficient provision of public services; and (4) the
speech precipitated the adverse employment action.” 15
      Garcetti v. Ceballos settled that “when public employees make
statements pursuant to their official duties, the employees are not speaking as




      11  Id. (quoting al-Kidd, 563 U.S. at 742, and Brosseau v. Haugen, 543 U.S. 194, 198
(2004) (per curiam)).
       12 Garcetti, 547 U.S. at 417.
       13 Id.
       14 Id. at 418.
       15 Anderson I, 845 F.3d at 590 (quoting Nixon v. City of Houston, 511 F.3d 494, 497

(5th Cir. 2007)).
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                                       No. 17-41243
citizens for First Amendment purposes, and the Constitution does not insulate
their communications from employer discipline.” 16 Garcetti left for later the
line between citizen and public-employee speech. As relevant here, after
Garcetti, we repeatedly held that employees speaking in discharge of job-
imposed obligations to report wrongdoing did so as public employees—not as
citizens. 17
       Clarity came with Lane v. Franks’ holding that “[t]he critical question
under Garcetti is whether the speech at issue is itself ordinarily within the
scope of an employee’s duties, not whether it merely concerns those duties.” 18
Under Lane, a general job-imposed obligation to detect and prevent
wrongdoing does not qualify as an employee’s “official duty” because “such
broad [obligations] fail to describe with sufficient detail the day-to-day duties
of a public employee’s job.” 19
                                              B
       Anderson’s Oath of Briefing Attorney subjected Anderson to the Texas
Code of Judicial Conduct, requiring that he swear that he would “observe the
standards of fidelity and diligence prescribed.” In turn, the Code of Judicial
Conduct requires judges—and, by extension, Anderson—“having knowledge
that another judge has committed a violation of this Code that raises a
substantial question as to the other judge’s fitness for office [to] inform the



       16  Garcetti, 547 U.S. at 421.
       17  See Wilson v. Tregre, 787 F.3d 322, 325 (5th Cir. 2015) (holding that a police deputy
acted pursuant to an official duty to enforce the laws in reporting potential sheriff
misconduct); Gibson v. Kilpatrick, 773 F.3d 661, 671 (5th Cir. 2014) (holding that where a
police chief reported mayoral misconduct to federal officials, he spoke pursuant to an official
duty to prevent and detect crime); cf. Charles v. Grief, 522 F.3d 508, 514 (5th Cir. 2008)
(holding that a systems analyst did not speak pursuant to official duties when reporting
potential misconduct, in part because “[h]e was not in a professional position of trust and
confidence like those of an assistant district attorney or a sheriff’s deputy”).
        18 573 U.S. 228, 240 (2014).
        19 Howell v. Town of Ball, 827 F.3d 515, 523–24 (5th Cir. 2016).

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State Commission on Judicial Conduct or take other appropriate action.”
Anderson stated multiple times that he reported Valdez to the State
Commission on Judicial Conduct to meet this obligation.
      Lane and our post-Lane caselaw make clear that a general obligation to
report judicial misconduct does not constitute an “official duty” demarcating
employee speech under Garcetti. That said, Lane was decided in June 2014—
roughly one month after Anderson’s employment offer was withdrawn—
leaving unsettled whether Anderson then spoke as a citizen or as an employee.
      Anderson argues that this issue is no different from the one addressed
in Anderson I, where we held that a general duty as a lawyer to report judicial
misconduct cannot constitute an “official duty” under Garcetti because “there
is an analogue to speech by citizens who are not public employees.” 20 His
argument is essentially that a job-imposed duty with a “citizen analogue” is
never an official duty for the purposes of Garcetti. But this relies on an implicit
premise—that when an employee is obligated to speak under both the terms of
employment and an analogous citizen obligation, the employee speaks only as
a citizen and not also as a public employee—that we have explicitly declined to
adopt. In Gibson v. Kilpatrick, a police officer argued that for the purposes of
Garcetti, he did not speak in discharge of an official duty to report crime
because he also spoke under his independent legal obligation as a citizen to do
so. 21 We observed that endorsing his position “would raise the question that
Lane expressly declined to answer, that is, whether there are obligations as a
citizen that preempt obligations as an employee for First Amendment




      20  Anderson I, 845 F.3d at 594, 597 (emphasis omitted) (concluding that Anderson’s
speech pursuant to his duty as a lawyer to report misconduct was “the kind of activity
engaged in by citizens—including licensed lawyers—who do not work for the government”
(internal quotation marks omitted)).
       21 773 F.3d at 669–70.

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purposes.” 22 Similarly, that Anderson had the same obligation as any lawyer
to report judicial misconduct—separate from the obligation imposed by his oath
of office—does not answer the question of whether he spoke as a public
employee when he discharged his job-imposed duty to report. 23
                                             C
        Anderson also contends that even if his complaint to the State
Commission on Judicial Conduct was not citizen speech, his later
communications to the Travis County District Attorney’s Office—made when
he was no longer a judiciary employee—were. He argues that these
communications alone could ground his retaliation claim. We disagree. If
Valdez was entitled to discipline Anderson for his initial speech as an
employee, then Anderson cannot escape the discipline of his employer for
breach of his employee duties by going public with the same speech. That much
was clear under Garcetti. 24 We conclude that it was not clearly established that
Anderson’s original complaint to the State Commission on Judicial Conduct
was not employee speech. It follows that Valdez is entitled to summary
judgment on qualified immunity grounds concerning Anderson’s later contact
with the District Attorney. There may be cases where a public employee’s later,
protected speech as a citizen was sufficiently attenuated from his earlier,
unprotected speech as an employee that it can ground a retaliation claim. Not
here.



        22 Id. at 670.
        23 In Anderson I, we had no occasion to consider the status of a job-imposed duty
mirroring a “citizen analogue,” because Valdez’s sole argument at that stage was that
Anderson had an independent—not job-imposed—obligation as a lawyer to report
misconduct. Our decision here is not in tension with Anderson I.
        24 Cf. Nixon, 511 F.3d at 499 (holding that a public employee could not ground a

retaliation claim on statements which, while “more closely approximat[ing] citizen speech”
than his earlier official statements, “constitute[d] a continuation” of statements he made in
his role as an employee).
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                                           ***
       As Valdez is entitled to qualified immunity because the law was not
clearly established at the time of the alleged retaliation, we end our inquiry
and reverse the district court’s denial of summary judgment on the individual-
capacity claim. 25
                                            IV
       Valdez also appeals the district court’s denial of summary judgment on
the claim asserted against him in his official capacity. 26 He argues that it is
barred by the Eleventh Amendment’s protection of states from private suit
without their consent or congressional abrogation. 27 Anderson responds that
the claim travels under Ex parte Young’s exception to Eleventh Amendment
immunity. 28 We agree, and so “need only conduct a straightforward inquiry
into whether [the] complaint alleges an ongoing violation of federal law and
seeks relief properly characterized as prospective.” 29
       While the equitable remedy of reinstatement can escape sovereign
immunity, 30 Anderson’s claim for reinstatement fails on its own terms under
principles of equitable relief. Justice Perkes—who hired Anderson specifically
to be his staff attorney—lost his bid for reelection and is no longer on the
Thirteenth Court. While Anderson points out that there are still senior staff
attorney positions on the Thirteenth Court, the practice of the Thirteenth



       25  See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (authorizing courts to “exercise
their sound discretion in deciding which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the particular case at hand”). We
also need not address Valdez’s other arguments for summary judgment on this claim.
        26 Valdez’s qualified immunity defense is unavailable for this claim. See Sanders-

Burns v. City of Plano, 594 F.3d 366, 371 (5th Cir. 2010).
        27 Va. Office for Protection & Advocacy v. Stewart, 563 U.S. 247, 253 (2011).
        28 Ex parte Young, 209 U.S. 123 (1908).
        29 Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (internal

quotation marks omitted).
        30 See Warnock v. Pecos Cty., 88 F.3d 341, 343 (5th Cir. 1996).

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Court is to allow judges to conduct their own individualized hiring; the staff
attorney role is similar to that of a judicial clerk who works for a specific
judge. 31 There is no ongoing violation of federal law in the failure to hire
Anderson for a different staff attorney position with a different judge. The
problem here goes beyond mere feasibility—it is not that a staff attorney
position exists with Perkes to which it may be administratively difficult to
reinstate Anderson, but rather that no such position exists. We reverse the
district court’s denial of summary judgment on this claim.
                                             V
       We reverse the district court’s order denying Valdez’s motion for
summary judgment in both his official and individual capacity.




       31 The Thirteenth Court’s administrative rules provide that “[e]ach justice shall be
solely responsible for all employment and management decisions regarding his or her staff.”
Similarly, the court’s hiring procedures provide that “[s]enior attorneys, briefing attorneys,
and legal assistants shall be hired by the Justice to whom they are assigned.”
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