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United States Court of Appeals, Ninth Circuit.

Joseph RYAN, Plaintiff-Appellee, v. Robert FABELA, VTA General Counsel, in his individual capacity and in his official capacity, Defendant-Appellant.

No. 18-15232

Decided: March 26, 2019

Before: W. FLETCHER, WATFORD, and HURWITZ, Circuit Judges. A. Cabral Bonner, Esquire, Attorney, Charles Bonner, Esquire, Attorney, Law Office of Bonner & Bonner, Sausalito, CA, for Plaintiff-Appellee Morin I. Jacob, Attorney, Abigail Wells Clark, Attorney, Liebert Cassidy Whitmore, San Francisco, CA, for Defendant-Appellant Alison M. Turner, Esquire, Greines, Martin, Stein & Richland LLP, Los Angeles, CA, for Amici Curiae-Pending League of California Cities, California State Association of Counties, International Municipal Lawyers Association


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 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, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ). We may begin our analysis with either prong. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (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 San Francisco, 125 F.3d 1328, 1332 (9th Cir. 1997) (quoting Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 63 L.Ed.2d 574 (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.



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.

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