Huppert v. City of Pittsburg

Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RON HUPPERT; JAVIER SALGADO,  Plaintiffs-Appellants, v. No. 06-17362 CITY OF PITTSBURG; AARON BAKER;  D.C. No. WILLIAM ZBACNIK; MICHAEL CV-05-01433-JL BARBANICA; WILLIAM BRIAN ADDINGTON; WAYNE DERBY, Defendants-Appellees. 

RON HUPPERT; JAVIER SALGADO,  Plaintiffs-Appellants, v. No. 07-16600 CITY OF PITTSBURG; AARON BAKER;  D.C. No. CV-05-01433-JL WILLIAM ZBACNIK; MICHAEL BARBANICA; WILLIAM BRIAN OPINION ADDINGTON; WAYNE DERBY, Defendants-Appellees.  Appeal from the United States District Court for the Northern District of California James Larson, Magistrate Judge, Presiding

Argued and Submitted July 18, 2008—San Francisco, California

Filed July 21, 2009

9317 9318 HUPPERT v. CITY OF PITTSBURG Before: William A. Fletcher and Richard C. Tallman, Circuit Judges, and William O. Bertelsman,* District Judge.

Opinion by Judge Tallman; Dissent by Judge William A. Fletcher

*The Honorable William O. Bertelsman, Senior United States District Judge for the Eastern District of Kentucky, sitting by designation. HUPPERT v. CITY OF PITTSBURG 9321

COUNSEL

Russell A. Robinson, San Francisco, California, for the appel- lants.

Joseph M. Quinn, MEYERS NAVE RIBACK SILVER & WILSON, San Francisco, California, for the appellees.

OPINION

TALLMAN, Circuit Judge:

We examine the question whether a state police officer’s speech, in different forms, is protected under the First 9322 HUPPERT v. CITY OF PITTSBURG Amendment from retaliatory actions taken by that officer’s superiors. Plaintiffs Ron Huppert and Javier Salgado appeal the district court’s grant of summary judgment in favor of the Appellees, the City of Pittsburg and individual police officers within the Pittsburg Police Department (“PPD”), dismissing their claims under 42 U.S.C. § 1983.

We hold that the speech at issue was given pursuant to Huppert and Salgado’s job duties, and therefore affirm the district court’s grant of summary judgment. Additionally, Sal- gado appeals the district court’s dismissal on summary judg- ment of his § 1983 claim brought under the Fourth, Sixth, and Fourteenth Amendments. We affirm the district court on this claim as well. Finally, both Huppert and Salgado appeal the district court’s grant of costs to the Appellees solely on the ground that the Appellees failed to timely file their bill of costs. This argument is meritless, so we also affirm the district court’s award of fees.

I

Huppert joined the PPD on January 25, 1991, where he worked primarily as a patrol officer and an inspector. In 1995, he was assigned to work a twenty-four hour shift at the Pitts- burg Seafood Festival. He requested a shift modification, which was subsequently denied by the PPD. He consulted with a labor attorney, who, unbeknownst to Huppert, con- tacted the PPD. After Huppert returned to work, Lieutenant Aaron Baker (“Baker”)—who is now Chief of Police for the PPD—expressed unhappiness with Huppert and asked Hup- pert to sign a letter in which he acknowledged (non-existent) sick-leave abuse. When Huppert refused to sign the letter and requested review of all his “sick-leave slips,” the matter was “apparently dropped.”

In 1996, after being promoted to Inspector, Huppert was assigned to investigate a vehicular manslaughter case. He reported that one of his supervisors, Sergeant Keeler HUPPERT v. CITY OF PITTSBURG 9323 (“Keeler”), a personal friend of Baker, had pursued a car- jacking suspect, reaching speeds of up to 100 m.p.h. without using his emergency lights or siren. An innocent third party perished in the resulting crash. In his report about the inci- dent, Huppert discussed his “concerns about Keeler’s conduct during the pursuit,” and Keeler’s use of racial slurs. Now a Commander, Baker charged Huppert with “failure to report and subversive conduct” for not having previously reported this misconduct—which Baker referred to as a “letter of advisement.” The charge was later reduced to a “warning.”

Between 1997 and 1998, while still employed as a Pittsburg police officer, Huppert was selected by the Contra Costa County District Attorney’s Office to assist in investigating corruption at the Pittsburg Public Works Yard. Huppert states that “[f]rom that time on, my superiors [at the PPD] treated me with scorn and as an outcast.” Then, in 1998 Huppert took the sergeant’s exam. He finished first on the written section of the exam, and during the oral portion of the exam, he was questioned “mostly” about his goatee. The following day Baker informed him that he would not be promoted because he had decided to keep his goatee.

Sometime prior to 2001, Huppert began working with the FBI on an investigation into suspected corruption within the PPD. While he does not disclose what assistance he gave to the FBI, he does claim that this work was “outside [his] duties as a member of the PPD.” Then, in January 2001, his supe- rior, William Zbacnik, informed Huppert that he would be transferred to “Code Enforcement,” also known as the “Stra- tegic Operations Bureau.” He was officially transferred in June 2001, and was sent to a building known within the PPD as the “Penal Colony,” because “disaffected and/or disfavored officers were assigned there.” Huppert’s new supervisor, Wil- liam Hendricks (“Hendricks”), informed him that he had been sent to the “Penal Colony” because Baker wanted Hendricks to find a way to fire him. Huppert’s new office at the “Penal Colony” was a “tiny converted bathroom without computer 9324 HUPPERT v. CITY OF PITTSBURG access,” and even though he was assigned to investigate gang- related activity, the building was not equipped with the proper secured areas needed for his investigations. During the six- month period between January and June 2001, Huppert was not permitted to work overtime.

Salgado joined the force in 1995 and was, for the majority of his tenure, a detective. In September 2001, he was assigned to the “Strategic Operations Bureau” as Huppert’s partner. Baker assigned both of them to investigate suspected corrup- tion at the local City-owned golf course, but told them not to inform Hendricks of this assignment. The investigation “re- vealed improper conduct by members of the PPD, including gambling, accepting free golf, and possible illegal drug activi- ty.” After only two interviews, Baker commanded that Hup- pert and Salgado cease the investigation. Once they informed Hendricks, he encouraged them to continue investigating and informed Baker that Huppert and Salgado were still looking into corruption at the golf course. Hendricks also informed the FBI that he believed there was a major gambling operation on-going at the golf course.

Huppert claims that while Baker told them not to memori- alize their findings, they drafted a report at the conclusion of their inquiry and directed it to Baker and the Pittsburg City Manager. The report “included a finding that defendant Zbac- nik had accepted thousands of dollars in gratuities and other illegal perks.” However, following the report, Baker took no action against Zbacnik, and instead deemed Zbacnik’s actions a “training issue.”

In 2002, Huppert and Salgado’s office was moved from the “Penal Colony” back to the main Civic Center. They were not initially given an office, and when they finally received one, it was “an old storage room.”

Huppert states that Hendricks was “forced out” in Decem- ber of 2002, and Michael Barbanica (“Barbanica”) took his HUPPERT v. CITY OF PITTSBURG 9325 place. In January 2003, Barbanica and defendant William “Brian” Addington (“Addington”) falsely accused Huppert and Salgado of engaging in an improper pursuit. Both Hup- pert and Salgado claim that they were in no way involved in the pursuit. Though Barbanica initially claimed that an “anon- ymous concerned citizen” had reported that Huppert and Sal- gado were involved, he later admitted that he had lied. He agreed that Zbacnik had been behind his false accusations.

It was normal practice at the PPD that when a supervisor was absent, the next senior officer was normally designated as acting unit supervisor. In late 2003 and early 2004, the practice was changed in the Code Enforcement Unit, where Huppert and Salgado were the next senior officers under their supervisor, Sergeant Reposa. Because of the change in prac- tice, Huppert and Salgado were required to report to the Investigations Unit Supervisor, and were hence prevented from exercising any supervisory authority and earning out-of- class pay.

Salgado claims that in late 2003 and early 2004, Addington began an investigation of Officer Jim Hartley for allegedly falsifying reports. It was obvious to Salgado that “Addington disliked Hartley and was seeking to terminate him.” Adding- ton sought to have Salgado claim first-hand knowledge of events which Salgado had not actually witnessed, but Salgado refused to do so.

Huppert and Salgado allege that in February 2004, defen- dant Wayne Derby (“Derby”) became their supervisor. Derby informed them that he was Chief Baker’s “ ‘hatchet man’ ” and that Baker saw them as “malcontents.” He subsequently took away their undercover vehicle and replaced it with an easily recognizable, though unmarked, Ford Taurus. They claim this hindered their work as gang detectives.

Huppert then states that in March 2004, he was subpoenaed to testify before a Contra Costa County grand jury that was 9326 HUPPERT v. CITY OF PITTSBURG “probing corruption in the PPD.” Other officers, including Baker, were also subpoenaed to testify, and the subpoenas were received at the PPD for delivery to the individual offi- cers. Huppert’s receipt of this subpoena was “recorded in a subpoena log posted in the [PPD] break room.” Huppert states that Baker openly discussed his testimony, and told Huppert he knew Huppert had testified before the grand jury as well. Baker also identified officers who he thought would be “bad witnesses” for the department, which Huppert understood to indicate Baker’s belief that they were “malcontents.”

Sometime after his grand jury testimony, Derby informed Huppert that his position as a gang investigator was being eliminated and he was transferred to a position investigating fraud and forgeries. Addington became his supervisor, and he was assigned to investigate fraud claims, which Huppert claims are less desirable than “person crimes.” After the trans- fer, Addington changed the way in which fraud cases were handled within the PPD, requiring Huppert to generate reports in order to close each case. Huppert believes this increase in workload was initiated simply as a method of harassment. Additionally, Addington would criticize the completed reports over minor mistakes, “such as the letter ‘M’ (for ‘Male’) being in the wrong font.” Addington also refused to permit Huppert to wear a uniform shirt with an outdated embroidered badge when other officers were allowed to do so. He would call Huppert to come to his office claiming he had Huppert’s “pink slip,” but would then admit he was just “kidding.” Finally, Addington attempted to replace Huppert’s “superla- tive” yearly evaluation, originally conducted by Sergeant Stroup, with an evaluation completed by Addington. After Huppert and the Patrol Officers’ Association filed a grievance against the PPD and Addington, Baker restored Stroup’s orig- inal evaluation to Huppert’s file. Huppert took a temporary disability leave in 2003, and then retired on disability in 2004.

In May 2004, Salgado was placed on administrative leave pending an investigation into whether he had falsified police HUPPERT v. CITY OF PITTSBURG 9327 reports in Health and Safety Code section 11550 cases. While he admits that he did “cut and paste” when drafting his arrest reports, he claims this was “an accepted practice at the time in the PPD,” and that he actually ensured that the proper indi- vidual results were accurately recorded. In fact, he insists this practice was “encouraged by [his] supervisors,” and he had seen other officers using his prefabricated reports.

In July 2004, Salgado received a Notice of Proposed Disci- plinary Action, which suggested his termination. Two days before Salgado’s Skelly1 hearing, a newspaper reporter noti- fied him that Baker was planning to terminate him from the PPD and the District Attorney would institute a criminal pros- ecution against him. A newspaper article stating the same was published on the day of the hearing. On the advice of counsel, Salgado did not appear at the Skelly hearing, and Baker termi- nated his employment three days later. However, apparently Baker had a change of heart, and Salgado was reinstated.

Barbanica informed Salgado that if he were to resign, the criminal charges would be dropped. Salgado reviewed his personnel file and found that it had been purged of all positive references and performance reviews. Notably absent was his 2001 Officer of the Year award. Salgado refused to resign and was officially terminated on August 24, 2004.

Huppert and Salgado filed this civil rights action in the Northern District of California on April 7, 2005. The defen- dants moved for summary judgment, which the court granted on November 15, 2007.2 The district court held, primarily under Garcetti v. Ceballos, 547 U.S. 410 (2006), that because each alleged incident of speech by either Huppert or Salgado was not made as a private citizen, the speech was not pro- 1 Skelly v. State Personnel Board, 15 Cal. 3d 194, 215 (1975), grants notice and a right to be heard to all California public employees before imposing discipline. 2 Judgment was entered on November 17, 2007. 9328 HUPPERT v. CITY OF PITTSBURG tected from retaliation by the First Amendment. Hence, they had no claim under § 1983. It also granted summary judgment to the defendants on Salgado’s claims and awarded costs to the defendants. Huppert and Salgado timely appealed.

II

We review a district court’s grant of summary judgment de novo. Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 896 (9th Cir. 2008). In determining whether summary judgment was appropriate, we view the evidence in the light most favor- able to Huppert and Salgado, the non-moving parties. Id. A grant of summary judgment is inappropriate if there is “any genuine issue of material fact or the district court incorrectly applied the substantive law.” Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir. 2007).

On Huppert and Salgado’s appeal regarding the award of costs, we review for clear error the district court’s findings of fact with respect to the timeliness of the cost application. Chevron USA Inc. v. Bronster, 363 F.3d 846, 855 (9th Cir. 2004), rev’d on other grounds sub nom., Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005). We review for abuse of dis- cretion the district court’s refusal to strike. Idaho Potato Comm’n v. G & T Terminal Packaging, Inc., 425 F.3d 708, 723 (9th Cir. 2005).

III

Three issues are before us on appeal. First, whether the dis- trict court improperly dismissed on summary judgment Hup- pert and Salgado’s § 1983 claims for violations of the First Amendment. Second, whether the presiding judge also erred by granting summary judgment on Salgado’s claim alleging violations of the Fourth, Sixth, and Fourteenth Amendments. Finally, whether the district court incorrectly awarded costs to the Appellees. HUPPERT v. CITY OF PITTSBURG 9329 A

[1] The Supreme Court has clearly stated that public employees do not shed their First Amendment rights simply because they are employed by the government. The First Amendment shields a public employee if he speaks as a citi- zen on a matter of public concern. See, e.g., Ceballos, 547 U.S. at 417; Rankin v. McPherson, 483 U.S. 378, 384 (1987); Connick v. Myers, 461 U.S. 138, 142-143 (1983); Pickering v. Bd. of Educ. of Twp. High School Dist. 205, Will Cty., 391 U.S. 563, 569-70 (1968). While this protection is applicable to such individuals, “when public employees make statements pursuant to their official duties, the employees are not speak- ing as citizens for First Amendment purposes, and the Consti- tution does not insulate their communications from employer discipline.” Ceballos, 547 U.S. at 421. “The problem in any case is to arrive at a balance between the interests of the [pub- lic 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.

[2] Recently, in Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009), we distilled the Supreme Court’s prior holdings on this issue into “a sequential five-step” inquiry:

(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 plain- tiff ’s protected speech was a substantial or motivat- ing factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other mem- bers of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.

Id. at 1070. We reaffirmed this test in Robinson v. York, 566 F.3d 817, 822 (9th Cir. 2009), where we again considered 9330 HUPPERT v. CITY OF PITTSBURG whether the district court had improperly denied qualified immunity in a § 1983 retaliation case.

[3] Our sister circuits and the Supreme Court have said that the question whether the plaintiff acted pursuant to his or her job duties is antecedent to a determination whether the plain- tiff spoke regarding a matter of public concern. See, e.g., Chaklos v. Stevens, 560 F.3d 705, 711-12 (7th Cir. 2009) (“[Ceballos] requires a threshold determination regarding whether the public employee spoke in his capacity as a private citizen or as an employee.”); Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008) (“it is clear that [Ceballos] added a threshold layer to our previous analysis”); Boyce v. Andrew, 510 F.3d 1333, 1343 (11th Cir. 2007) (stating that it must decide “at the outset (1) if the government employee spoke as an employee or citizen . . .”); Weisbarth v. Geauga Park Dist., 499 F.3d 538, 545 (6th Cir. 2007) (“the threshold inquiry [is] whether the speech was, in fact, made pursuant to the employ- ee’s official duties”); Williams v. Dallas Ind. Sch. Dist., 480 F.3d 689, 692 (5th Cir. 2007) (“[t]he Supreme Court’s recent pronouncement in Garcetti v. Ceballos added a threshold layer . . .”). While we also believe that this should be the threshold inquiry, we are bound by our precedent to follow the test set forth in Eng.

[4] Where applicable below, we will move through the sequential Eng factors. The first two prongs of this inquiry address whether the speech should be protected under the First Amendment, while the last three address whether that protected speech caused some retaliatory response. However, because these are sequential steps, as explained in Eng, failure to meet one necessarily concludes our inquiry.

Huppert and Salgado point to four incidents where they believe their protected speech led to retaliatory action by the Appellees: (1) Huppert’s assistance to the Contra Costa County District Attorney’s Office in 1997 and 1998 investi- gating corruption at the PPD; (2) Huppert and Salgado’s HUPPERT v. CITY OF PITTSBURG 9331 report and memoranda regarding their golf-course investiga- tion; (3) Huppert’s cooperation with the FBI in its investiga- tion of corruption within the PPD; and (4) Huppert’s testimony before the Contra Costa County grand jury investi- gating potential corruption within the PPD. We discuss each in turn.

Huppert’s first claim of retaliation stems from his coopera- tion with the Contra Costa County District Attorney’s Office in 1997 and 1998 during its investigation of the Public Works Department. He claims that during this time he was not work- ing as a police officer, but instead as an assistant to the Dis- trict Attorney. Then, after his superiors at the PPD discovered his involvement with the criminal investigation, he was “treated with scorn and as an outcast.” Also as a result of this involvement, he claims that he was passed over for a promo- tion, transferred to the Penal Colony, and that his assistance led to additional acts of retaliation.3 Though he provides no evidence that any speech occurred—i.e., he points to no record of a report, discussion with superiors, letters to politi- cians, etc.—we read the facts in his favor and assume that he engaged in some form of speech.

Under the Eng test, we first consider whether his investiga- tion involved a matter of public concern. “[S]peech involves a matter of public concern when it fairly can be said to relate to ‘any matter of political, social, or other concern to the com- munity.’ ” Gibson v. Office of Atty. Gen., State of Cal., 561 3 The City counters that this claim is time-barred under the applicable statute of limitation. While Huppert’s assistance to the District Attorney’s office took place in 1997 and 1998, the claimed retaliatory actions occurred over a long period of time. Additionally, none of these alleged actions were discrete, see Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110, 114 (2002), and instead indicate a potential continuing practice within the PPD, id. at 111-12. We therefore disregard the City’s argument that the statute of limitation bars this portion of Huppert’s claim. 9332 HUPPERT v. CITY OF PITTSBURG F.3d 920, 925 (9th Cir. 2009) (quoting Connick, 461 U.S. at 146 (1983)). “Analysis of public concern is not an exact sci- ence.” Weeks v. Bayer, 246 F.3d 1231, 1234 (9th Cir. 2001). “When the employee addresses issues about which informa- tion is needed or appropriate to enable the members of society to make informed decisions about the operation of their gov- ernment, that speech falls squarely within the boundaries of public concern.” Id. (internal quotation marks and citations omitted). We have said that “[u]nlawful conduct by a govern- ment employee or illegal activity within a government agency is a matter of public concern.” Thomas v. City of Beaverton, 379 F.3d 802, 809 (9th Cir. 2004). Furthermore, “misuse of public funds, wastefulness, and inefficiency in managing and operating government entities are matters of inherent public concern.” Johnson v. Multnomah County, 48 F.3d 420, 425 (9th Cir. 1995). It is clear to us that an investigation into cor- ruption and misconduct at the local Public Works Department —typically a municipal department created to provide multi- ple public services to community members—is a matter of public concern. Cf. Robinson, 566 F.3d at 823.

However, it is less apparent that Huppert meets the second prong of the Eng test. As explained in Eng, “the plaintiff bears the burden of showing the speech was spoken in the capacity of a private citizen and not a public employee.” 552 F.3d at 1071 (citing Ceballos, 547 U.S. at 421-22). While the Supreme Court did not delineate a “comprehensive frame- work” for determining when speech is pursuant to an employ- ee’s job function, it provided guidance for lower courts to follow when making such a decision. Ceballos, 547 U.S. at 424.

[5] Ceballos said that speech which “owes its existence to an employee’s professional responsibilities” is not protected by the First Amendment. Id. at 421. Additionally, if the public employee was paid for the speech—e.g., drafting a memoran- dum, creating a report, advising a supervisor—then that com- pensation might be indicative of the nature of the speech. Id. HUPPERT v. CITY OF PITTSBURG 9333 at 422. An adverse employment action for this type of speech “does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commis- sioned or created.” Id. at 421-22. Our inquiry should be prac- tical and look beyond the job description to the duties the employee actually performs. Id. at 424. Speech which has “no official significance” and bears “similarities to [actions taken] by numerous citizens everyday” falls outside the ambit of an employee’s job duties and would be protected by the First Amendment. Id. at 422.

Only twice since Ceballos have we had the opportunity to determine whether an employee’s speech was pursuant to his official duties.4 First, in Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006), we examined multiple different complaints by Freitag, a female prison guard, regarding sexual harassment by male prisoners. We held that Freitag’s reports of sexual harassment, complaints to her superiors within the prison sys- tem, and documentation of the prison system’s response to her complaints were all examples of unprotected speech.5 Id. at 544, 546. On the other hand, with regard to her communica- tion outside the prison system to her state senator and the appointed inspector general, “we [found] it clear that [those] 4 In his dissent, Judge Fletcher also points to Eng and Robinson as cases where “we have addressed whether a government employee’s speech was made pursuant to his or her official duties.” Dissent, at 9354, 9356, 9357. However, neither Eng nor Robinson actually decided the scope of the plaintiff ’s job duties. In both, we were unable to review the question because the district court had determined that genuine issues of material fact were present and had denied qualified immunity. Eng, 552 F.3d at 1073; Robinson, 566 F.3d at 823-24; see also Johnson v. Jones, 515 U.S. 304, 319-20 (1995) (holding that appellate courts generally lack the ability to review a district court’s finding of a genuine issue of fact). 5 We remanded for additional fact-finding on the question whether pur- suing a complaint all the way up the chain of command within the Califor- nia Department of Corrections and Rehabilitation is within the duties of a prison guard. Freitag, 511 F.3d at 546. 9334 HUPPERT v. CITY OF PITTSBURG communications [we]re protected under the First Amend- ment.” Id. at 545. We held that “her right to complain both to an elected public official and to an independent state agency is guaranteed to any citizen in a democratic society regardless of his status as a public employee.” Id.

Then, in Marable v. Nitchman, 511 F.3d 924 (9th Cir. 2007), we concluded that a complaint by Marable, an engi- neer for the Washington State Ferries (“WSF”), alleging high- level corruption and mismanagement of funds was outside a ferry-worker’s job duties. We applied the requisite “practical inquiry” to whether Marable’s complaints concerning corrupt overpayment schemes was speech pursuant to his job duties, and found it was not. Id. at 932 (“Functionally . . . it cannot be disputed that his job was to do the tasks of a Chief Engi- neer on his ferry, and such tasks did not include pointing to corrupt actions of higher level officials whom he purportedly thought were abusing the public trust and converting public funds to their own use by overpayment schemes.”). We noted that “[h]e was not responsible for attempting to ensure that his superiors abstained from allegedly corrupt financial schemes.” Id. at 933. In total, we found four instances of Mar- able’s protected speech: (1) complaints to the former chief executive officer of the WSF, (2) conversations with the Department of Transportation auditor, (3) a complaint to the State Executive Ethics Board, and (4) two phone calls to Nitchman, the WSF Maintenance Director. Id. at 929.

[6] Our sister circuits have also weighed in, providing addi- tional analysis to guide our decision. First, in Morales v. Jones, 494 F.3d 590 (7th Cir. 2007), the Seventh Circuit held that a police officer’s conversations with superiors and assis- tant district attorneys discussing an arrest was obviously part of the officer’s duties. Id. at 597. On the other hand, the court concluded that being deposed as a witness in a separate § 1983 action for retaliation by the police chief against another police officer was clearly not part of an officer’s job. Id. at 595, 598. The Fifth Circuit has determined that one indi- HUPPERT v. CITY OF PITTSBURG 9335 cator might be whether an individual complains “up the chain of command” or instead relays “his concerns to persons out- side the work place.” Davis v. McKinney, 518 F.3d 304, 313 (5th Cir. 2008). And, the Seventh Circuit again considered the question in 2008 in Tamayo v. Blagojevich, 526 F.3d 1074 (7th Cir. 2008). However, this time it found that the speech was not protected, because reporting misconduct and wrong- doing at a legislative hearing was part of the plaintiff ’s job as “an employee with significant and comprehensive respon- sibility for policy information and implementation.” Id. at 1092.

[7] This brings us back to any statements Huppert may have made during the investigation at the Public Works yard. Huppert argues that he was not acting as a police officer dur- ing his cooperation with the District Attorney’s office. Instead, he claims he was an “assistant to the District Attor- ney.” However, in his deposition, Huppert concedes that he was asked to participate in the investigation, and subsequently assigned to do so, by the police department. While his investi- gative work might have been supervised by the District Attor- ney’s office, his six-month assignment was at the direction of his superiors and, as a police officer, in his official capacity as a peace officer.

Second, both Huppert and Salgado argue they were retali- ated against after they completed their investigation into improper conduct at the Pittsburg Golf Course.6 Here they claim that their charge was to investigate corruption and gam- bling by PPD officers at the city golf course. Together, they produced an investigative report detailing their findings, which included information about waiver of fees for PPD employees, gambling in the golf course’s sports bar by mem- 6 This is the only First Amendment retaliation claim on which Salgado joins. 9336 HUPPERT v. CITY OF PITTSBURG bers of the PPD, and other improper conduct. The report also included a list of PPD officers who took advantage of free golf. They claim this report is protected speech which ulti- mately led their superiors to take multiple retaliatory actions against them.

[8] Their argument is remarkably similar to Huppert’s con- tention regarding the Public Works yard. As we have already noted, an investigation into corruption at a public department is most certainly a matter of public concern. The same is true for corruption within or concerning the police force. See Thomas, 379 F.3d at 809; Johnson, 48 F.3d at 425; McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983) (“the competency of the police force is surely a matter of great pub- lic concern”). However, it is more difficult to determine whether Huppert and Salgado were speaking as public employees or private citizens.

Huppert and Salgado argue that they were not acting pursu- ant to their job duties because, while Baker had originally assigned them to conduct the inquiry, he then ordered them to discontinue their investigation after only two interviews. However, their immediate supervisor, Hendricks, told them to continue the investigation and encouraged them to report the results. They followed Hendricks’s direction and completed their investigation, which culminated in a memorandum directed to Chief Baker and the City Manager.

[9] This is one of the clearest examples of speech pursuant to one’s job duties. Though Huppert and Salgado would have us believe that they acted outside the chain-of-command by continuing their investigation in direct contravention to Baker’s demand that they cease, Hendricks ordered them to continue. Furthermore, Hendricks informed Baker that Hup- pert and Salgado would be probing deeper into misconduct at the Golf Course. “When [they] went to work and performed the tasks [they were] paid to perform, [Huppert and Salgado] acted as . . . government employee[s]. The fact that [their] HUPPERT v. CITY OF PITTSBURG 9337 duties sometimes required [them] to speak or write does not mean [their] supervisors were prohibited from evaluating [their] performance.” Ceballos, 547 U.S. at 422. Therefore, we find that Huppert and Salgado’s report, created after their investigation into misconduct at the Golf Course, was also not protected speech.

[10] Huppert’s third claim is that he was the subject of retaliatory action following his cooperation with the FBI, which began sometime in 2001. From his declaration, it appears he assisted in their investigation probing corruption at the PPD, which he claims was “outside [his] duties as a mem- ber of the PPD.” In his declaration, Huppert states that he “met with Investigator Leary, Deputy District Attorney Sepulveda, and Special Agent Joe Davidson of the FBI.” He claims that this communication took place entirely “on [his] personal time.” This claim differs from his first two retaliation arguments because there is no evidence that he was following the direct orders of his superiors at the time he participated in the investigation. Yet, while Huppert again satisfies the first prong of the Eng test, he fails at the second.

The California courts have repeatedly articulated the duties of a police officer within the state. As the oft-quoted passage in Christal v. Police Commission of City and County of San Francisco, 92 P.2d 416, 419 (Cal. Ct. App. 1939), states:

The duties of police officers are many and varied. Such officers are the guardians of the peace and security of the community, and the efficiency of our whole system, designed for the purpose of maintain- ing law and order, depends upon the extent to which such officers perform their duties and are faithful to the trust reposed in them. Among the duties of police officers are those of preventing the commission of crime, of assisting in its detection, and of disclosing 9338 HUPPERT v. CITY OF PITTSBURG all information known to them which may lead to the apprehension and punishment of those who have transgressed our laws. When police officers acquire knowledge of facts which will tend to incriminate any person, it is their duty to disclose such facts to their superiors and to testify freely concerning such facts when called upon to do so before any duly con- stituted court or grand jury. It is for the performance of these duties that police officers are commissioned and paid by the community . . . .

See also Riverside County Sheriff’s Dep’t v. Zigman, 169 Cal. App. 4th 763, 768 (2008); Titus v. Civil Serv. Comm’n, 181 Cal. Rptr. 699, 702-03 (1982); Szmaciarz v. State Pers. Bd., 79 Cal. App. 3d 904, 915 (1978); see also Frazee v. Civil Serv. Bd. of City of Oakland, 338 P.2d 943, 945 (Cal. Ct. App. 1959).

[11] Though Huppert argues that he was repeatedly informed by the FBI that his investigatory work was outside his duties as a police officer, this is not enough to overcome California’s jurisprudence defining such duties. It is clear that in California a police officer’s official duties include investi- gating corruption, so as to “prevent[ ] the commission of crime, . . . [and] assist[ ]in its detection.” Christal, 92 P.2d at 419. While we do not know the contents of any speech that Huppert made, we do know that such conversations with the FBI would have been to “disclos[e] all information known to [Huppert]” regarding the alleged acts of corruption within the PPD. This obviously encompasses his duty to uphold the law specifically entrusted to California’s peace officers.

[12] Huppert’s fourth and final cause of action hinges on alleged retaliation following his testimony before the county grand jury, which was also investigating corruption at the PPD. Again, under Christal and its progeny, it is manifest that HUPPERT v. CITY OF PITTSBURG 9339 California expects such testimony from its police officers. As the California Court of Appeal made clear: “When police offi- cers acquire knowledge of facts which will tend to incriminate any person, it is their duty to disclose such facts to their supe- riors and to testify freely concerning such facts when called upon to do so before any duly constituted court or grand jury.” Id. (emphasis added). Testifying before a grand jury charged with investigating corruption is one part of an offi- cer’s job. As the Supreme Court explicitly stated, “[r]estricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.” Ceballos, 547 U.S. at 421-22; see also Deprado v. City of Miami, 446 F.Supp. 2d 1344, 1346 (S.D. Fla. 2006) (“In accordance with the Police Department’s regulations, and the Plaintiff ’s obli- gations as a State-certified law enforcement officer, Plain- tiff ’s subpoenaed grand jury testimony occurred pursuant to his official duties as a police officer for the City of Miami Police Department, and was not speech as a private citizen.”). Therefore, any speech Huppert gave during his grand jury tes- timony was “pursuant to his duties as a [police officer],” and that speech is not protected by the First Amendment. Id. at 421.

We decline to follow the Third Circuit’s decision in Reilly v. Atlantic City, 532 F.3d 216 (3d Cir. 2008). There, the Third Circuit considered whether a police officer’s truthful trial tes- timony was protected speech. Reilly, an Atlantic City police officer, was called to testify for the prosecution in a trial against another police officer for allegedly running a prostitu- tion ring and other misconduct. Id. at 220. Reilly had received inside information regarding the accused through his work as an investigator at the police department. Id. The Third Circuit found that testimony at trial was protected because “[i]t is axi- omatic that ‘every citizen . . . owes to his society the duty of giving testimony to aid in the enforcement of law.’ ” Id. at 9340 HUPPERT v. CITY OF PITTSBURG 228 (quoting Piemonte v. United States, 367 U.S. 556, 559 n.2 (1961)). Because “offering truthful testimony is the responsi- bility of every citizen, . . . [w]hen a government employee tes- tifies truthfully, [he] is not simply performing his or her job duties; rather, [he] is acting as a citizen and is bound by the dictates of the court and the rules of evidence.” Id. at 231.

The court admitted that it was answering the question of “whether truthful trial testimony arising out of the employee’s official responsibilities constitutes protected speech.” Id. at 230 (emphasis added). It went on to concede that “Reilly’s trial testimony [ ] appears to have stemmed from his official duties in the investigation.” Id. at 231. However, instead of finding that this was obviously speech pursuant to Reilly’s job duties, the court took a swift turn to conclude that truthful tes- timony is never part of a police officer’s duties. Id. This is in sharp contradiction to the Supreme Court’s holding in Cebal- los, which drew a distinct line between speech pursuant to one’s job duties and speech in a private capacity. By first finding that Reilly’s speech was pursuant to his job duties, but subsequently concluding that it was protected by the First Amendment, the Reilly court impermissibly began chipping away at the plain holding in Ceballos.

Judge Fletcher’s dissent relies on two other cases to show that a police officer’s grand jury testimony should be pro- tected as a matter of law. The first, Morales, is clearly distin- guishable on the facts. 494 F.3d 590. The second, Evans v. Housing Authority of Benicia, No. 2:07-cv-0391, 2008 WL 4177729 (E.D. Cal. 2008), is merely unbinding precedent which does not interpret the obligation of a California police officer to testify regarding crime.

First, in Morales, the Seventh Circuit found that “[b]eing deposed in a civil suit pursuant to a subpoena was unquestion- ably not one of Morales’ job duties.” 494 F.3d at 598. The court noted that though Morales had gained information for the civil suit while working as a police officer, and had even HUPPERT v. CITY OF PITTSBURG 9341 testified regarding actual speech he made pursuant to his job duties, any retaliation taken because he testified in this depo- sition was impermissible. Id. This holding is understandable. Morales’ statements were made in a civil suit brought by another officer against the Chief of Police and the Deputy Chief. California’s courts have never said that it expects its police officers to assist other officers in their individual civil suits against present or former employers. Testimony related to the discovery and cessation of crime, however, is an obliga- tion. That was not the question posed to the Seventh Circuit, and Judge Fletcher reads that court’s holding too broadly.

Also, in Evans, Evans was the former accountant and book- keeper for the Benicia Housing Authority (“BHA”), which is an “independent public agency created to provide low-cost housing to the city.” 2008 WL 4177729, at *1. Evans realized that his former boss, Peterson—the then manager and Execu- tive Director of the BHA—was operating on reduced work hours and failing to collect rent or assess late fees to delin- quent tenants. Id, at *2. In October 2004, a grand jury was convened to investigate operations at the BHA. Id. Peterson first testified before the grand jury regarding overall business practices within the BHA, and then when Evans testified in late November, he explained “tenant rent account irregulari- ties and Peterson’s reduced work hours.” Id. Following Evan’s testimony, Peterson placed Evans on administrative leave and, ultimately, terminated him.

The district court held that “Evans’ statements to the Grand Jury concerning the tenant rent account irregularities and Peterson’s reduced working hours . . . [were] not made pursu- ant to Evans’ official job duties.” Id. at 7. Hence, under Ceballos, the statements were protected by the First Amend- ment and any retaliatory action taken violated Evans’ consti- tutional rights.

In addition to the reality that Evans cannot and does not bind us, it is so factually distinguishable as to be irrelevant to 9342 HUPPERT v. CITY OF PITTSBURG our discussion here. Evans was an accountant working for the city’s independent housing authority. The California courts have never explicitly, or even impliedly, stated that one duty of an accountant at a public agency is to testify before grand juries. It comports with our understanding of Ceballos that such testimony would be outside the practical duties of a bookkeeper. However, this says nothing about whether Cali- fornia expects its police officers to testify about alleged crimi- nal conduct. Judge Fletcher’s reliance on this case is unavailing and unpersuasive here, merely discussed because the court chose to protect the speech of a person testifying before a grand jury. The question is not whether such testi- mony occurred, but instead whether the obligation to provide that testimony “owes its existence to an employee’s profes- sional responsibilities.” Ceballos, 547 U.S. at 421.

[13] Our holding does not imply that a police officer might never be protected if he speaks on issues such as corruption, for we recognize that “[e]xposing governmental inefficiency and misconduct is a matter of considerable significance.” Ceballos, 547 U.S. at 425. Even though we find that, under California law, testimony such as Huppert’s is within the duties of a police officer, speech outside one’s official duties remains protected by the First Amendment. See id. at 422 (noting that a letter to the newspaper is similar to speech undertaken by citizens on a daily basis); Freitag, 468 F.3d at 545 (holding that complaints to an elected official and inde- pendent reviewing officer are outside a prison guard’s work duties).

There exist other avenues of recourse available to protect an officer who exposes misconduct within the police depart- ment and is subsequently subjected to retaliation. States, including California, have created “whistle-blower” statutes for this exact purpose, and our holding today does not impact those statutes. See, e.g., Cal. Gov. Code § 8547-8547.12. As HUPPERT v. CITY OF PITTSBURG 9343 the majority in Ceballos explicitly stated, “[t]he dictates of sound judgment are reinforced by the powerful network of legislative enactments—such as whistle-blower protection laws and labor codes—available to those who seek to expose wrongdoing.” 547 U.S. at 425.

Our conclusion today enforces these statutes and empowers a state to choose the appropriate remedy for an individual who speaks on this type of issue and is then subjected to retalia- tion. Further, it is these statutes that protect officers from the “Catch 22”—i.e., either not complying with a subpoena and being found in contempt of court, or testifying only to then be the subject of retaliation—that concerns Judge Fletcher. Yet, under Ceballos, these individuals are not entitled to the pro- tections of the Civil Rights Act or the remedies accompanying a victorious § 1983 suit when speaking pursuant to their offi- cial duties.

B

In addition to his First Amendment claims, Salgado also appeals the district court’s grant of summary judgment on his § 1983 claim for violations of his rights under the Fourth, Sixth, and Fourteenth Amendments. As with Huppert’s claims regarding retaliation from his cooperation with the FBI, Sal- gado fails to identify concrete claims, bolster those claims with facts, or cite legal authority pertaining to the claims. These claims are therefore abandoned. See Fed. R. App. P. 28(a)(9)(A); Xin Liu, 347 F.3d at 1138.

C

Finally, Huppert and Salgado contend that the district court improperly awarded costs to the Appellees. They do not chal- lenge the court’s determination that the Appellees were the prevailing party; instead they argue that the Appellees failed to timely file their costs, rendering an award inappropriate. Local Rule section 54-1(a) states: “No later than 14 days after 9344 HUPPERT v. CITY OF PITTSBURG entry of judgment or order under which costs may be claimed, a prevailing party claiming taxable costs must serve and file a bill of costs . . . .” While the district court issued its sum- mary judgment ruling on November 15, 2006, the final order was not docketed until November 17, 2006. The Appellees filed their bill of costs on November 30, 2006, within the fourteen-day time period required by the Local Rules.

IV

We affirm the district court’s grant of summary judgment on all claims and the award of costs.

AFFIRMED.

W. FLETCHER, Circuit Judge, dissenting:

I respectfully dissent.

Former police officers Ron Huppert and Javier Salgado (“Plaintiffs”) sued their former employer, the City of Pitts- burg, California, and several individual members of the Pitts- burg Police Department (“PPD”) (collectively, “Defendants”) under 42 U.S.C. § 1983 and several provisions of California law. Their § 1983 suit was primarily based on the contention that Defendants unlawfully retaliated against them for engag- ing in speech protected under the First Amendment. Huppert contends that he engaged in constitutionally protected speech on four occasions. Salgado contends that he engaged in con- stitutionally protected speech on the third of these occasions. Plaintiffs contend that Defendants unlawfully retaliated against them for this speech. The district court granted sum- mary judgment against Plaintiffs on their First Amendment claims based on Garcetti v. Ceballos, 547 U.S. 410 (2006).

The majority concludes that Huppert and Salgado’s speech on these four occasions was not protected under the First HUPPERT v. CITY OF PITTSBURG 9345 Amendment. I agree with the majority with respect to Hup- pert’s speech on the first occasion. But I disagree with the majority with respect to Huppert’s speech on the second, third, and fourth occasions and Salgado’s speech on the third occasion.

I. Factual Background

The majority opinion provides a somewhat truncated narra- tive of the evidence before the district court. I provide a more extended, free-standing narrative of that evidence, laying the full foundation for Huppert and Salgado’s First Amendment claims. I could have made my narrative shorter by adding dis- crete pieces of information to supplement the majority’s nar- rative in various places, but the result would have been choppy and awkward. My narrative is necessarily somewhat redundant, but it is intended to make the reader’s ultimate task easier. My narrative relies only on evidence in the record that is properly cognizable on summary judgment.

In his sworn declaration, Plaintiff Huppert states that he joined the PPD in 1991. In 1995, when he was a patrol offi- cer, he was assigned to work a continuous 24-hour shift at the Pittsburg Seafood Festival. He requested a modification of the shift to allow breaks during the 24-hour period. After the request was denied, he consulted a labor attorney. Without Huppert’s knowledge, the attorney contacted the PPD. Defen- dant Aaron Baker was then a Lieutenant in the PPD. Then- Lieutenant Baker was “unhappy” with Huppert as a result of his complaint about his 24-hour shift. At Baker’s direction, Huppert was presented with a letter asking him to acknowl- edge his sick leave abuse. Huppert refused to sign the letter and demanded to see his “sick leave slips” for the relevant period. Huppert states that the matter was then “apparently dropped.”

Huppert states that in 1996, after he had been promoted to Inspector, he was assigned to investigate a vehicular man- 9346 HUPPERT v. CITY OF PITTSBURG slaughter case. One of Huppert’s supervisors, Sergeant Keeler, had been pursuing a carjacking suspect at speeds of up to 100 m.p.h. without using his siren or emergency lights. During the chase, the suspect struck and killed an innocent third person. Huppert reported his “concerns about Keeler’s conduct during the pursuit.” He also reported Keeler’s use of “racial slurs, including ‘nigger’ and ‘gorilla’ with reference to African-Americans.” Keeler was a personal friend of Baker. Now a Commander, Baker charged Huppert with misconduct for not having previously reported Keeler’s use of racial slurs and sent him a “warning” letter. (In his sworn declaration, Baker calls it a “letter of advisement.”) Huppert states that even though Keeler’s use of racial slurs was verified by another officer, Baker concluded that Huppert’s report was “unfounded.”

Huppert states that in 1997 and 1998, he was selected by the Contra Costa County District Attorney to assist with an investigation into corruption at the public works yard. “From that time on, my superiors treated me with scorn and as an outcast.”

Huppert states that in 1998 he took the sergeant’s exam. He finished first on the written portion. During the oral portion of the exam, he was questioned “mostly” about his goatee. He was not promoted to sergeant. The day after the oral examina- tion, Baker told him that he had been passed over because of the goatee.

Huppert states that sometime prior to 2001 he began coop- erating with the FBI in an investigation of corruption in the PPD. Huppert characterizes this cooperation as being “outside [his] duties as a member of the PPD.” Defendant Baker had been promoted to Chief of Police in September 1998. Huppert states that Baker learned of his cooperation with the FBI and in 2001 had him transferred from Investigations to Code Enforcement. Commander William Hendricks was in charge of this unit. Hendricks states in his sworn declaration that the HUPPERT v. CITY OF PITTSBURG 9347 Code Enforcement unit “was known as the ‘Penal Colony’ because disaffected and/or disfavored officers were assigned there.” He states, “Chief Aaron Baker expressly ordered me to terminate plaintiff Huppert or force him to take a position outside the Department; then-Lieutenant William Zbacnik was present during this conversation.” Huppert states in his declaration that Hendricks told him that Baker had “told him to see that I left or find a way to fire me.”

Huppert states that Defendant Zbacnik told him that he was not allowed to work overtime for the six-month period between January and June 2001. Huppert was physically transferred from the newly rebuilt Pittsburg Civic Center to a building where the “Penal Colony” worked. Huppert’s office in the Penal Colony was a “tiny converted bathroom without computer access.” Even though Huppert was assigned to investigate gangs, the Penal Colony building did not have “a secured area that a Gang and Intelligence office would need.”

Plaintiff Salgado states in his sworn declaration that in Sep- tember 2001 he was assigned to the Code Enforcement unit and became Huppert’s partner. Both Huppert and Salgado state that the City Manager then asked them to “investigate possible corruption at the City-owned golf course.” They state that Baker told them not to inform their superior, Hendricks, of the investigation. Their investigation “revealed improper conduct by members of the PPD, including gambling, accept- ing free golf, and possible illegal drug activity.” Hendricks states in his declaration that after two interviews and only one day of investigating, Baker ordered Huppert and Salgado to stop the investigation.

Hendricks states, “I tried to protect [Huppert and Salgado] from any retaliation. I went to the FBI with what I believed to be a major gambling operation, and told Baker that I had referred the matter to the FBI. I learned from my discussions with Chief Baker and others that Zbacnik, Lt. Robert Gomez, and other people under Zbacnik’s command were involved in 9348 HUPPERT v. CITY OF PITTSBURG illegal activity at the Golf Course. I told Baker that he may be violating the law by trying to bury the investigation by Huppert and Salgado. Baker threatened me with my career if I continued to press the matter.”

Huppert states that he and Salgado continued to investigate “with the knowledge and encouragement of Hendricks.” Hen- dricks states that Baker ordered them not to write a report, but Huppert states that he nonetheless reported their “initial find- ings” in an “ ‘abridged’ memo.” Huppert states that his report included “a finding that defendant Zbacnik had accepted thou- sands of dollars in gratuities and other illegal perks.” How- ever, Baker took “no action” against Zbacnik,” calling Zbacnik’s actions a “ ‘training issue.’ ” Huppert states that he and Salgado informed only Baker and the City Manager of their findings. However, he stated that Ray Giacamelli, a member of the PPD and a personal friend of Zbacnik, told Huppert and Salgado that “we were sticking our noses where they did not belong and that we were ‘going to go down.’ ” Huppert and Salgado reported the threat to Baker, but Baker said that “no investigation was warranted.”

Huppert and Salgado state that in May 2002 the Code and Enforcement unit was moved back to the main Civic Center building. They were not given an office initially, but were eventually assigned one in “an old storage room.”

Huppert states that in December 2002, Hendricks was “forced out.” Defendant Michael Barbanica became the new supervisor of their unit. In January 2003, Barbanica and Defendant William “Brian” Addington falsely accused Hup- pert and Salgado of having engaged in an improper pursuit. Huppert and Salgado state that neither of them had been involved in the pursuit in question. Barbanica initially said that an “ ‘anonymous concerned citizen’ ” had called to com- plain about Huppert and Salgado’s alleged pursuit, but Bar- banica later admitted that he had made this up. HUPPERT v. CITY OF PITTSBURG 9349 Huppert and Salgado state that in late 2003 and early 2004 their supervisor was Sergeant Reposa. When Reposa was absent, neither Huppert nor Salgado was permitted to serve as acting supervisor, even though that would have been the nor- mal practice. Huppert and Salgado were thereby denied the opportunity to earn “out-of-class pay.”

Huppert and Salgado state that in February 2004, Defen- dant Wayne Derby became their supervisor. Derby informed them that he was Baker’s “ ‘hatchet man’ ” and that Baker saw them as “malcontents.” Derby took away the unmarked undercover car that Salgado had previously driven and replaced it with a Ford Taurus that, while unmarked, was “easily recognizable as a police vehicle.” Driving the Taurus “hindered” Huppert and Salgado’s “ability to function as gang detectives.”

Huppert states that in March 2004 he was subpoenaed to testify before a civil grand jury that was “probing corruption in the PPD.” Huppert had been contacted about the probe sev- eral years earlier by Senior Investigator Tom Leary of the Contra Costa County District Attorney’s Office. On what he describes as his “personal time,” Huppert had met with Leary, Deputy District Attorney Sepulveda, and FBI Special Agent Joe Davidson. Huppert states that Davidson told him that his “actions in connection with the probe were as an individual and not in my capacity as a member of the PPD.” Grand jury subpoenas were delivered to the PPD for service on about a dozen individual officers. Huppert was served with his sub- poena in front of other PPD officers, and the subpoena was recorded in a log posted in the break room. Huppert states that Baker told him that he knew he had testified before the grand jury. However, Baker states in his declaration that “I was not aware that Huppert ever testified before the Grand Jury regarding these issues.” Baker states further, “I have never been informed of the substance of such testimony by Hup- pert.” 9350 HUPPERT v. CITY OF PITTSBURG Huppert states that after he testified before the grand jury, Defendant Derby informed him that his position as gang investigator was being “eliminated.” Huppert was transferred to the Investigations unit where his supervisor was Defendant Addington. Although detectives junior to Huppert were assigned to “person crimes,” Huppert was assigned to fraud, which was regarded as a less desirable assignment. After Huppert was assigned to fraud, Addington changed the proce- dure so that all fraud cases originating with the Patrol Bureau came to Huppert. Previously, fraud cases originating with the Patrol Bureau could be closed at that level. Under the new procedure, Huppert was required to close those cases and to write reports for all of them. Huppert states that the change was a “purposeless increase in workload intended to harass me.”

Huppert states that Addington engaged in numerous acts to make his work life difficult. For example, he sent reports back to Huppert “because of ‘flaws’ such as the letter ‘M’ (for ‘Male’) being in the wrong font”; he refused to allow Huppert to wear a uniform shirt with an out-of-date embroidered badge when other officers were permitted to do so; and he told Huppert to come see him because he had his “ ‘pink slip,’ ” and then said he was kidding. Further, Addington attempted to replace a “superlative” yearly evaluation of Hup- pert by Sergeant Stroup that was already in his personnel file with an evaluation of his own, even though Addington had not been Huppert’s supervisor at the time in question. After Huppert and the Patrol Officers’ Association filed a grievance against the PPD and Addington, Baker restored Stroup’s eval- uation to Huppert’s file.

Beginning in April 2005, Huppert retired on disability due to a knee injury. He states in his declaration that elective sur- gery on his knee “might” have enabled him to return to active police work. “However, given the persistent and pervasive discrimination and harassment I suffered, the fact that my long-time partner, Salgado, was terminated after he began his HUPPERT v. CITY OF PITTSBURG 9351 association with me, and the other means by which the defen- dants in this action sought to destroy my career and the careers of other good officers, I accepted the disability retire- ment and elected not to undergo surgery.” (In the district court, Huppert claimed racial discrimination in violation of state law, and his reference to “discrimination” in the just- quoted sentence is a reference to that claim. Huppert has not appealed the district court’s summary judgment ruling on his state-law discrimination claim.)

Salgado states that in late 2003 and early 2004, Addington began investigating PPD Officer Jim Hartley for alleged falsi- fication of reports. It was “apparent” to Salgado that “Adding- ton disliked Hartley and was seeking to terminate him.” Addington attempted to persuade Salgado to “claim first-hand knowledge of incidents I had not witnessed.” Salgado refused.

Salgado states that in May 2004 he was placed on adminis- trative leave pending an investigation into whether he had fal- sified reports in California Health and Safety Code § 11550 (“driving under the influence”) cases. Salgado states in his declaration that he “did ‘cut and paste’ when writing such reports,” but that this was “an accepted practice at the time in the PPD.” He states that “the individual test results for each suspect were accurately recorded.” Salgado states further that “cutting and pasting . . . was actually encouraged by some supervisors.” “On several occasions defendants Barbanica and Addington asked me to provide officers with one of my pre- formatted reports, and during the investigation of my reports I saw reports written by officers Raman, Albanese, and Wentz using my template. . . . A number of the questioned reports that led to my termination were in fact reviewed and approved by defendants Addington and Barbanica, both of whom were also present at some of the arrests in question.”

Salgado states that in July 2004 he was given a Notice of Proposed Disciplinary Action proposing his termination from the PPD. Two days before his scheduled hearing under Skelly 9352 HUPPERT v. CITY OF PITTSBURG v. State Personnel Board, 15 Cal. 3d 194 (1975), Salgado received a telephone call from a newspaper reporter who told him that Baker was planning to terminate him and that the District Attorney would bring a criminal prosecution. A news- paper article to that effect appeared on the day scheduled for the hearing. On advice of counsel, Salgado did not appear. Baker, performing as Acting City Manager, terminated Salga- do’s employment three days later. Shortly thereafter, Baker reinstated Salgado. Defendant Barbanica then informed Sal- gado that if he resigned, all criminal charges would be dropped. Salgado learned, however, that his personnel file was being “purged of all positive references.” Salgado looked at his file and discovered that all of his good performance reviews had been removed, including his 2001 Officer of the Year award. Salgado did not resign and was formally termi- nated in late August 2004.

Defendant Addington testified in his deposition that one of the two Deputy District Attorneys to whom he spoke was reluctant to file criminal charges against Salgado. Addington testified that after he made “my own pitch” to the Deputy criminal charges were filed. Salgado pleaded no contest to five felony counts of falsifying reports in violation of Califor- nia Penal Code § 118.5.

Except as noted during the course of the foregoing narra- tive, Defendants do not contest the factual accuracy of Hup- pert, Salgado, and Hendricks’ sworn declarations.

II. Legal Background

For nearly four decades, we determined whether a public employee’s speech was protected under the First Amendment by following the analysis in Pickering v. Board of Education, 391 U.S. 563 (1968). In Pickering, a public school teacher had sent a letter to the editor of the local newspaper criticizing the board of education and superintendent of schools for their handling of school funding. See id. at 564. The teacher was HUPPERT v. CITY OF PITTSBURG 9353 fired in retaliation for the letter. He brought suit, claiming that the First Amendment protected his speech. The Supreme Court agreed, stating that speech deserves First Amendment protection when it addresses “a matter of legitimate public concern.” Id. at 571.

The Supreme Court’s recent decision in Garcetti v. Cebal- los, 547 U.S. 410 (2006), has made it more difficult for gov- ernment employees to establish that their speech is protected under the First Amendment. Ceballos, a deputy district attor- ney, concluded that an affidavit used to obtain a search war- rant in a pending criminal case contained “serious misrepresentations.” Id. at 414. He stated this in a “disposition memorandum” to his supervisors, who allegedly retaliated against him because of the memorandum. Id. at 414-15. Ceballos brought suit under § 1983, claiming that his speech was protected under the First Amendment. The Court dis- agreed, holding that “when public employees make statements pursuant to their official duties, the . . . First Amendment . . . does not insulate their communications from employer disci- pline. Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do.” Id. at 421.

The Court wrote 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. However, the Court did provide a few guidelines. It explicitly rejected the “suggestion that employ- ers can restrict employees’ rights by creating excessively broad job descriptions.” Id. Rather, the Court stated that “[t]he proper inquiry is a practical one[,]” as “[f]ormal job descrip- tions often bear little resemblance to the duties an employee actually is expected to perform.” Id. at 424-25. The Court also noted that speaking in the workplace, rather than in public, does not necessarily mean that the speech was made pursuant 9354 HUPPERT v. CITY OF PITTSBURG to official duties. See id. at 420-21. Furthermore, whether the speech concerns “the subject matter of [the speaker’s] employment . . . is nondispositive.” Id. at 421.

In four cases decided after Ceballos, we have addressed whether a government employee’s speech was made pursuant to his or her official duties. The first case is Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006), in which Freitag, a correctional officer at Pelican Bay Prison, complained that inmates were sexually harassing her and undermining her ability to impose discipline by repeatedly masturbating in front of her. Freitag first complained to her supervisors about the sexual harass- ment. She complained to them again after they repeatedly refused to take disciplinary action against the offending pris- oners. For example, one of Freitag’s supervisors threw away the form on which she had reported masturbation, saying that she was the only person who had a problem with this inmate and that “it’s only sex.” Id. at 533.

When Freitag’s immediate supervisors continued to ignore and belittle her complaints, she wrote to the head of the Cali- fornia prison system, the Director of the California Depart- ment of Corrections and Rehabilitation (“CDCR”). After her supervisors retaliated against her for having written to the Director, Freitag contacted a state senator and California’s Office of the Inspector General (“Inspector General”), an independent agency that oversees the CDCR. Freitag’s super- visors further retaliated against her for having contacted the state senator and the Inspector General.

We were unsure, based on the record before us, whether Freitag’s letter to the Director of the CDCR was protected speech under the First Amendment. We remanded for a fac- tual determination of the scope of Freitag’s “official duties,” stating that “[w]e are unsure whether prison guards are expected to air complaints . . . all the way up to the Director.” Id. at 546. However, we were certain that Freitag had not spo- ken “pursuant to [her] official duties,” and that she was pro- HUPPERT v. CITY OF PITTSBURG 9355 tected by the First Amendment, when she contacted the state senator and the Inspector General. Id. at 545. We wrote:

Freitag acted as a citizen when she wrote letters to Senator Polanco and communicated with the Inspec- tor General regarding her complaints of sexual harassment. Her right to complain both to an elected public official and to an independent state agency is guaranteed to any citizen in a democratic society regardless of his status as a public employee. Under Ceballos, Freitag does not lose her right to speak as a citizen simply because she initiated the communi- cations while at work or because they concerned the subject matter of her employment.

Id. (citations omitted); see also Fuerst v. Clarke, 454 F.3d 770 (7th Cir. 2006) (holding that plaintiff deputy sheriff’s adverse comments on the sheriff’s decision to hire a public relations officer were not made pursuant to his official duties).

The second case is Marable v. Nitchman, 511 F.3d 924 (9th Cir. 2007), in which Marable, a Chief Engineer in charge of the engine department of a ferry operated by the Washington State Ferries (“WSF”), complained of corrupt financial prac- tices by WSF managers. He complained in two telephone calls to the Maintenance Director of the WSF; in two conver- sations with a Washington Department of Transportation auditor; in a conversation with a former CEO of the WSF; and in a complaint to the Washington Executive Ethics Board. See id. at 929. Marable’s superiors retaliated against him for hav- ing made these complaints.

We held that Marable’s complaints were protected by the First Amendment. We wrote:

At the outset, we think it worth noting that an employee’s charge of high level corruption in a gov- ernment agency has all of the hallmarks that we nor- 9356 HUPPERT v. CITY OF PITTSBURG mally associate with constitutionally protected speech. The matter challenged was a matter of intense public interest, had it become known, and criticisms of a government lie at or near the core of what the First Amendment aims to protect.

Id. at 932. We concluded that Marable’s speech, including his speech within the WSF hierarchy, was protected because it was not made pursuant to his official duties:

The Supreme Court has observed that the inquiry into whether employee speech is pursuant to employment duties is a practical one. . . . Function- ally, . . . it cannot be disputed that [Marable’s] job was to do the tasks of a Chief Engineer on his ferry, and such tasks did not include pointing to corrupt actions of higher level officials whom he purportedly thought were abusing the public trust and converting public funds to their own use by overpayment schemes.

Id.

The third case is Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009), in which Eng, a Los Angeles County Deputy District Attorney, presented a report to his supervisors recommending that no criminal charges be brought against persons involved in the planning and construction of the local school district’s Belmont Learning Complex. 552 F.3d at 1064. Eng’s report conflicted with the report of Anthony Patchett, the leader of the Belmont Task Force, and with the political agenda of Eng’s boss, the recently-elected District Attorney, who had campaigned on a promise to reform the Belmont project. Id. The Task Force adopted Eng’s report. Id. At the meeting of the Task Force adopting his report, Eng argued that the financing for the Belmont project fell through because Pat- chett “had improperly leaked to the IRS that the School Dis- trict had committed fraud in purchasing the Belmont HUPPERT v. CITY OF PITTSBURG 9357 property.” Id. Thereafter, Eng’s supervisors purportedly retal- iated against him by falsely accusing him of sexual harass- ment and suspending him for improper use of an office computer, a trumped up charge. Id. at 1065-66. The Los Ange- les Times later published an article on Eng’s case that included statements from Mark Geragos, Eng’s attorney. Id. at 1065.

In reviewing Eng’s First Amendment retaliation claim, we stated that “ ‘the question of the scope and content of a plain- tiff ’s job responsibilities is a question of fact.’ ” Id. at 1071 (citation omitted). “In evaluating whether a plaintiff spoke as a private citizen, we must therefore assume the truth of the facts as alleged by the plaintiff with respect to employment responsibilities.” Id. We concluded that while Eng had a duty to submit his report, “Eng’s version of the facts plausibly indicates that he had no official duty to complain about [Pat- chett’s] leak to the IRS or to authorize Geragos to speak to the press.” Id. at 1073. We held that Eng properly stated a First Amendment retaliation claim. Id. at 1074.

The fourth case is Robinson v. York, 566 F.3d 817 (9th Cir. 2009). Robinson, a sergeant in the Los Angeles County Office of Public Safety, testified in a class action lawsuit alleging discrimination by his employer and filed several misconduct reports pertaining to problematic behavior, some of which he observed while off duty. Id. at 820-21. The reports described, for example, officers who appeared to be consuming alcohol while on duty and instances of potential battery or excessive force. Id. Robinson alleged that his supervisors discouraged him from filing so many reports and indicated that filing fewer reports would improve his chances of being promoted to lieutenant. Id. at 821. Robinson thereafter performed very well on an examination for promotion to lieutenant but was not promoted. Id. He filed suit under the First Amendment. Id.

In determining whether Robinson’s reports were filed pur- suant to his official duties, we stated that the “scope of Robin- 9358 HUPPERT v. CITY OF PITTSBURG son’s duties is a question of fact. [W]hen there are genuine and material disputes as to the scope and content of the plain- tiff ’s job responsibilities, the court must reserve judgment . . . until after the fact finding process. “ Id. at 823-24 (internal quotation marks and citations omitted; bracket and ellipses in original). We concluded that we must “assume the resolution of this dispute in the non-moving party’s favor.” Id. at 824 (citing Eng, 552 F.3d at 1067).

The lesson from the Supreme Court’s decision in Ceballos, and from the four cases we have decided since then, is clear. If a public employee’s speech is made pursuant to his or her official duties, it is not protected under the First Amendment. However, if there is a genuine issue of material fact as to whether speech was made pursuant to a plaintiff ’s official duties, that issue may not be treated as a question of law to be resolved at summary judgment. Rather, it must be treated as a question of fact to be resolved in a fact-finding proceed- ing.

In Freitag, we were uncertain whether Freitag had a duty to report her complaints to the Director of the CDCR. 468 F.3d at 546. Rather than deciding the scope of Freitag’s duties as a question of law, we remanded for a factual determination. Id. It was only because there was no dispute that Freitag’s speech to a state senator and the Inspector General was not made pursuant to her official duties that we did not require a factual determination on that issue. Likewise, in Marable it was only because the speech by Marable to high level offi- cials regarding corruption in his department indisputably fell outside of his duties as an engineer on a ferry that we did not require a factual determination on that issue. The plaintiff in Eng “plausibly” did not have a duty to complain about his co- worker’s leak to the IRS or to authorize his lawyer to speak to the press. 552 F.3d at 1073. That was enough to survive summary judgment and to require a factual determination at trial. Finally, because the duties of the plaintiff in Robinson were disputed, we permitted the First Amendment claim to HUPPERT v. CITY OF PITTSBURG 9359 proceed, stating that we “must reserve judgment . . . until after the fact finding process.” 566 F.3d at 824 (emphasis added, internal quotation marks omitted, ellipsis in original).

Requiring factual determinations by a jury, or by a judge after a bench trial, when there is a genuine factual dispute about the scope of a plaintiff ’s official duties makes sense as a matter of institutional competence. In many instances, a judge can have only an imperfect understanding of the precise duties associated with a public sector job when all he or she knows is a job title. The duties of jobs with the same title often vary substantially depending on the agency and job location. The duties associated with a particular job may change over time. And the actual duties of an employee may vary substantially from the formal, publicly released job description. Thus, for a judge to conclude as a matter of law what is, and is not, included in a public employee’s official duties is a very hazardous enterprise.

III. Plaintiffs’ Protected Speech

Plaintiffs contend that they engaged in protected speech on four occasions: (1) Huppert’s speech during his investigation into corruption at the public works yard in 1997 and 1998; (2) Huppert’s speech during his cooperation with the FBI in its investigation into corruption in the police department some- time prior to 2001; (3) Huppert and Salgado’s speech during their investigation into police corruption at the city-owned golf course beginning in late 2001; and (4) Huppert’s subpoe- naed speech to the grand jury in 2004 during its investigation into corruption in the police department.

I agree with the majority that the district court’s summary judgment with respect to Huppert’s speech on the first occa- sion should be affirmed. In my view, Huppert has provided insufficient evidence that his speech on that occasion was not uttered pursuant to his official duties to survive summary judgment. 9360 HUPPERT v. CITY OF PITTSBURG However, I disagree with the majority with respect to Hup- pert’s speech on the second, third, and fourth occasions, and with respect to Salgado’s speech on the third occasion. In my view, there is a genuine issue of material fact whether Plain- tiffs’ speech on the second and third occasions was uttered pursuant to their official duties and, therefore, whether it was protected under the First Amendment. Further, in my view, Huppert’s speech on the fourth occasion was protected, as a matter of law, under the First Amendment.

A. Huppert’s Speech During the FBI Investigation into Corruption in the Pittsburg Police Department

Huppert states in his declaration that sometime prior to 2001 he began cooperating with the FBI in its investigation of corruption in the Pittsburg Police Department (“PPD”). Hup- pert specifically states that his cooperation was “outside [his] duties as a member of the PPD.” Huppert states that in 2001, when Police Chief Baker learned of his cooperation with the FBI, he retaliated by transferring Huppert to the Code Enforcement unit of the PPD, otherwise known as the Penal Colony.

In my view, Huppert has created a genuine issue of mate- rial fact as to the scope of his official duties. Huppert has spe- cifically, and not implausibly, stated that his speech during his cooperation with the FBI’s investigation into corruption in the PPD was not part of his official duties as a member of the PPD. I therefore conclude that the scope of Huppert’s official duties, and the motivation for Baker’s assignment of Huppert to the Penal Colony, are questions of fact to be resolved by a jury, not an issue of law to be resolved on summary judg- ment.

B. Huppert and Salgado’s Speech During the Investigation into Police Corruption at the City-Owned Golf Course

Huppert and Salgado state in their declarations that the City Manager asked them to conduct the investigation into police HUPPERT v. CITY OF PITTSBURG 9361 corruption at the city-owned golf course. Commander Hen- dricks, states in his declaration that Police Chief Baker told Huppert and Salgado to stop their investigation after only one day. Hendricks states that Baker explicitly ordered Huppert and Salgado not to write a report. Huppert states that, in direct disobedience to Baker’s order, he and Salgado continued their investigation and that he wrote a report of their “initial find- ings.” Huppert and Salgado state that they were retaliated against for this speech.

Huppert and Salgado contend that because they continued their investigation, and because Huppert wrote the report in direct contravention of orders from Police Chief Baker, the speech contained in the report was not made pursuant to their official duties. I recognize that Huppert and Salgado contin- ued their investigation with the knowledge and encourage- ment of Commander Hendricks. But any encouragement from Hendricks conflicted with the direct order of Police Chief Baker. In my view, a direct order from the Chief of Police is a more authoritative source for determining the scope of a police officer’s official duties than the encouragement of a lower-ranking officer in the department to disobey that order. At most, Hendricks’ encouragement of Huppert and Salgado creates a factual question as to the scope of their official duties. This is precisely the type of question that we saved for fact-finding proceedings in Freitag, Eng, and Robinson. Hup- pert and Salgado’s version of the facts “plausibly indicates that [they] had no official duty” to prepare the report on their public golf course corruption investigation. Eng, 552 F.3d at 1073. Consequently, we must “assume the resolution of this dispute in the non-moving part[ies’] favor.” Robinson, 2009 U.S. App. LEXIS 8844 at *11.

Police Chief Baker, who is a defendant in this suit, may be able to provide evidence that would help a jury determine the scope of Huppert and Salgado’s official duties. For example, Baker could testify that in directing them not to prepare the report, he was defining the contours of their official duties. If 9362 HUPPERT v. CITY OF PITTSBURG this is so, Huppert was not acting pursuant to his official duties when he wrote the report, and his (and Salgado’s) speech is protected under the First Amendment. On the other hand, Baker could testify that writing the report was part of their official duties, and that Baker was directing them not to perform their duty. If this is so, Baker may have been behav- ing improperly by attempting to cover up corruption in his police force, but Huppert and Salgado were acting pursuant to their official duties in preparing the report, and their speech was not protected.

C. Subpoenaed Testimony Before the Grand Jury Investigating Corruption in the Pittsburg Police Department

Huppert was subpoenaed to appear before a civil grand jury investigating corruption in the Pittsburg Police Department. He appeared before the grand jury in compliance with the subpoena. We do not know his actual testimony, but we know that he testified concerning corruption in the PPD. Huppert states that after he testified he was subjected to various retal- iatory actions.

The majority relies on Christal v. Police Commission of San Francisco, 92 P.2d 416, 419 (Cal. Ct. App. 1939), to con- clude that police officers in California have an official duty to testify pursuant to a subpoena before grand juries investigat- ing corruption in their department. Christal states, “When police officers acquire knowledge of facts which will tend to incriminate any person, it is their duty to disclose such facts to their superiors and to testify freely concerning such facts when called upon to do so before any duly constituted court or grand jury.” I do not regard Christal as relevant to the question before us. In my view, if a public employee is sub- poenaed to testify before a grand jury, he or she has a duty as a citizen that is independent of any duty he or she might also have as an employee. In testifying pursuant to a subpoena, the HUPPERT v. CITY OF PITTSBURG 9363 employee is therefore not performing an official duty within the meaning of Ceballos.

The majority’s conclusion that Huppert’s subpoenaed speech before the grand jury is not protected under the First Amendment conflicts with two recent decisions by our sister circuits. In Morales v. Jones, 494 F.3d 590 (7th Cir. 2007), Milwaukee police officer Morales testified in a deposition pursuant to a subpoena. The substance of his testimony con- cerned evidence that the Chief and Deputy Chief of Police had harbored a fugitive, the brother of the Deputy Chief, and that the Chief had retaliated against another officer in another matter. Morales claimed in a § 1983 suit that the Chief of Police and the Deputy Chief retaliated against him for his deposition testimony. The Seventh Circuit held that Morales’ speech during the deposition was protected under the First Amendment. The court wrote,

Being deposed in a civil suit pursuant to a subpoena was unquestionably not one of Morales’ job duties because it was not part of what he was employed to do. Nonetheless, Morales testified about speech he made pursuant to his official duties and we must determine whether that fact renders his deposition unprotected. We hold that it does not. . . .

Id. at 598.

In Reilly v. Atlantic City, 532 F.3d 216, 220 (3d Cir. 2008), Atlantic City police officer Reilly testified in a criminal trial against a fellow officer accused of corruption. A high-ranking Atlantic City police officer who was a friend of the allegedly corrupt officer had been a suspect but had not been charged. Reilly claimed in a § 1983 suit that the Chief of Police and the high-ranking officer retaliated against him for his trial testi- mony. The Third Circuit held that Reilly’s testimony was pro- tected under the First Amendment. The court wrote: 9364 HUPPERT v. CITY OF PITTSBURG [T]he act of offering truthful testimony is the respon- sibility of every citizen, and the First Amendment protection associated with fulfilling that duty of citi- zenship is not vitiated by one’s status as a public employee. That an employee’s official responsibili- ties provided the initial impetus to appear in court is immaterial to his/her independent obligation as a cit- izen to testify truthfully.

Id. at 231.

A recent district court decision in our own circuit is even more directly on point. In Evans v. Housing Authority of Beni- cia, 2008 WL 4177729 (E.D. Cal. Sept. 8, 2008), Evans was an accountant for the Benicia Housing Authority (“BHA”). Evans observed that Peterson, one of his supervisors, was working “reduced hours” and was not collecting certain past due rents. Evans reported his observations to the Chairperson of the BHA. He later testified about his observations before a civil grand jury investigating the BHA.

The court held that Evans’ testimony before the grand jury was protected, both as to the hours worked by Peterson and to her failure to collect rents. The court wrote:

Testifying before the Grand Jury was not in any way part of Evans’ official job duties. It was clearly not within the scope of Evans’ official job duties to tes- tify before the Grand Jury about Peterson’s alleged failure to collect past due rents . . . . Nor was it within the scope of Evans’s duties to testify before the Grand Jury about Peterson’s reduced work hours. Rather, it was Evans’ duty as a citizen to expose such official malfeasance to broader scrutiny.

Id. But see Deprado v. City of Miami, 446 F. Supp. 2d 1344, 1346 (S.D. Fla. 2006) (holding that “[i]n accordance with the [Miami] Police Department’s regulations, and the Plaintiff ’s HUPPERT v. CITY OF PITTSBURG 9365 obligations as a State-certified law enforcement officer,” grand jury testimony by a Miami police officer was not pro- tected speech under the First Amendment).

Morales, Reilly, and Evans hold that where there is an inde- pendent legal duty to speak (in our case, to testify before the grand jury pursuant to a subpoena), the employee has First Amendment protection for truthful speech uttered in perfor- mance of that independent legal duty. The fact that the employer may require its employees to obey a law that exists independent of the employment relationship does not allow the employer to retaliate against an employee for obeying that law.

This holding comports with sound policy. There are strong reasons to avoid holding that police officers have an official duty, within the meaning of Ceballos, to testify before a grand jury pursuant to a subpoena about corruption among their fel- low officers. Such a holding would result in a Catch 22. If a police officer were subpoenaed to testify, he or she would have two choices. One choice would be to testify before the grand jury. In that event, the officer could lawfully be fired in retaliation for his or her testimony. The other choice would be to refuse to testify. In that event, the officer would face contempt (and possibly other adverse consequences) for fail- ing to comply with a subpoena.

The subject of Huppert’s testimony before the grand jury was, in the words of our decision in Marable, “high level cor- ruption in a government agency,” which “has all the hall- marks that we normally associate with constitutionally protected speech.” 511 F.3d at 932. When he appeared before the grand jury, Huppert acted “as a citizen,” exercising a right “guaranteed to any citizen in a democratic society regardless of his status as a public employee.” Freitag, 468 F.3d at 545. He also appeared pursuant to his duty as a citizen, indepen- dent from his duty as a public employee, to comply with the subpoena. That Huppert’s speech concerned “the subject mat- 9366 HUPPERT v. CITY OF PITTSBURG ter of [his] employment . . . is nondispositive.” Ceballos, 547 U.S. at 421. Sound policy counsels us not to conclude that his speech was made pursuant to his official duties. So do Mora- les and Reilly, the only opinions by courts of appeals on this issue. I think we are fully justified in following these cases and holding that when an officer testifies before a grand jury pursuant to a subpoena concerning corruption of his or her fellow officers, the officer is not performing an official duty within the meaning of Ceballos.

Conclusion

The majority holds that Huppert’s speech during the FBI investigation into corruption in the Pittsburg Police Depart- ment, and Huppert and Salgado’s speech during the investiga- tion into police corruption at the city-owned golf course, were not protected under the First Amendment. In so holding, the majority fails to follow our binding circuit precedent in four cases decided after the Supreme Court’s decision in Ceballos — Freitag, Marable, Eng, and Robinson.

The majority also holds that Huppert’s subpoenaed speech to the grand jury investigating corruption in the Pittsburg Police Department was not protected by the First Amend- ment. In so holding, the majority creates a circuit split with the Seventh Circuit’s decision in Morales and the Third Cir- cuit’s decision in Reilly.

I respectfully dissent.