NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 18 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
VAN POUNDS, No. 20-35154
Plaintiff-Appellant, D.C. No. 6:19-cv-00420-MK
v. MEMORANDUM* CAMERON SMITH, individually and in his official capacity; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding
Argued and Submitted July 6, 2021 Portland, Oregon
Before: M. MURPHY,** PAEZ, and BENNETT, Circuit Judges.
Plaintiff-Appellant Van Pounds appeals the district court’s order dismissing
his complaint with prejudice for failing to state a claim upon which relief can be
granted. The district court adopted the magistrate judge’s findings and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael R. Murphy, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. recommendation, which found that Pounds failed to plausibly allege First and
Fourteenth Amendment claims,1 and denied Pounds leave to amend his complaint.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse in part, affirm in
part, and remand.
Pounds was an attorney employed by the Oregon Department of Consumer
and Business Services (“DCBS”). In March 2018, he decided to run for election to
the Oregon Supreme Court. After he filed to run, a reporter made two public records
requests for certain of Pounds’s employment files. The first request sought
documents pertaining to Pounds’s job titles, “job classifications[,] and salaries from
Jan[uary] 1, 2015 until now.” The records first produced showed Pounds had
changed jobs at least once, and also reflected a small salary reduction. The second
request sought “written communication including but not limited to emails,
correspondence, investigative reports or other documentation that explains the
reasons for Mr. Pounds’ demotion and pay cut.”
In 2015, the DCBS, unbeknownst to Pounds, investigated Pounds while he
was a DCBS supervisor. The 2015 investigation generated a report (“Report”),
which stated that “overwhelmingly, employees generally do not trust [Pounds],” and
that Pounds “is generally found to be the least credible person in the unit.” The State
1 The district court also dismissed Pounds’s state law and Fair Credit Reporting Act claims. Pounds does not challenge those rulings on appeal, and thus may not reassert them on remand.
2 says that Pounds was not demoted or subject to any adverse employment action,
either as a result of the investigation or for any other reason.
The State released the Report in response to the second records request. When
Pounds asked individual defendant Brian Light why DCBS would disclose such a
report, he was allegedly told: “That’s what you get when you file for public office.”
DCBS allegedly offered Pounds an opportunity to request a “name-clearing hearing”
prior to the release of the Report, but then allegedly released the report before the
deadline offered to request the hearing had passed. When DCBS disclosed the
Report to the requesting reporter, DCBS wrote: “We believe this investigative report
contains the information you are wanting. If, after reading this report, you still want
emails, let me know.” Soon after, the reporter’s newspaper ran an article with the
headline: “A state investigation of a candidate for the Oregon Supreme Court found
him ‘the least credible person in the unit.’” Pounds later lost the election, garnering
26.5% of the vote.
1. The district court erred in adopting the magistrate judge’s finding and
recommendation that Pounds’s First Amendment claim did not allege state action
“reasonably likely to deter [Pounds] from engaging in his First Amendment speech”
and thus that he failed to plead an adverse employment action. Reviewing de novo,
Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1151 (9th Cir. 2019), we hold that
DCBS’s disclosure of the Report, which Pounds alleged to contain false stigmatizing
3 information, can constitute an adverse employment action that impermissibly chills
protected speech.
We begin by addressing whether there was an adverse employment action.
Our circuit has adopted the “reasonably likely to deter” test, where we ask whether
Pounds can establish that the actions taken by the defendants were “reasonably likely
to deter employees from engaging in constitutionally protected speech.” Coszalter
v. City of Salem, 320 F.3d 968, 970, 976 (9th Cir. 2003). “To constitute an adverse
employment action, a government act of retaliation need not be severe and it need
not be of a certain kind. Nor does it matter whether an act of retaliation is in the
form of the removal of a benefit or the imposition of a burden.” Id. at 975.
Taking Pounds’s allegations as true, we hold that disclosure of a report like
this one, allegedly containing false information of this type, prepared by a
government agency, regarding a public employee candidate for judicial office, can
constitute an adverse employment action for First Amendment purposes. This, after
all, was a report finding that state employees overwhelmingly viewed their attorney
coworker as untrustworthy and not credible. We reject the DCBS’s position that this
case involves “[m]ere threats and harsh words” like those in Nunez v. City of Los
Angeles, 147 F.3d 867, 875 (9th Cir. 1998).2
2 That DCBS’s email producing the Report can be read to falsely affirm that Pounds was demoted as a result of the investigation adds to the already sufficient “reasonably likely to deter” allegations.
4 Because we find an adverse employment action, we proceed to a “sequential
five-step series of questions”:
(1) whether [plaintiff] spoke on a matter of public concern; (2) whether [plaintiff] spoke as a private citizen or public employee; (3) whether [plaintiff’s] protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating [plaintiff] differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.
Greisen v. Hanken, 925 F.3d 1097, 1108 (9th Cir. 2019). Pounds has the burden of
proving the answers to the first three questions are “yes.” Id. If he succeeds, the
burden shifts to the State for the final two steps. Id.
DCBS concedes that Pounds’s candidacy for the Oregon Supreme Court
satisfies the first two steps. As to the third, Pounds’s pleadings must show that he
can:
(1) introduce evidence that the speech and adverse action were proximate in time, such that a jury could infer that the action took place in retaliation for [his] speech; (2) introduce evidence that the employer expressed opposition to the speech; or (3) introduce evidence that the proffered explanations for the adverse actions were false and pretextual.
Anthoine v. N.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 18 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
VAN POUNDS, No. 20-35154
Plaintiff-Appellant, D.C. No. 6:19-cv-00420-MK
v. MEMORANDUM* CAMERON SMITH, individually and in his official capacity; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding
Argued and Submitted July 6, 2021 Portland, Oregon
Before: M. MURPHY,** PAEZ, and BENNETT, Circuit Judges.
Plaintiff-Appellant Van Pounds appeals the district court’s order dismissing
his complaint with prejudice for failing to state a claim upon which relief can be
granted. The district court adopted the magistrate judge’s findings and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael R. Murphy, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. recommendation, which found that Pounds failed to plausibly allege First and
Fourteenth Amendment claims,1 and denied Pounds leave to amend his complaint.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse in part, affirm in
part, and remand.
Pounds was an attorney employed by the Oregon Department of Consumer
and Business Services (“DCBS”). In March 2018, he decided to run for election to
the Oregon Supreme Court. After he filed to run, a reporter made two public records
requests for certain of Pounds’s employment files. The first request sought
documents pertaining to Pounds’s job titles, “job classifications[,] and salaries from
Jan[uary] 1, 2015 until now.” The records first produced showed Pounds had
changed jobs at least once, and also reflected a small salary reduction. The second
request sought “written communication including but not limited to emails,
correspondence, investigative reports or other documentation that explains the
reasons for Mr. Pounds’ demotion and pay cut.”
In 2015, the DCBS, unbeknownst to Pounds, investigated Pounds while he
was a DCBS supervisor. The 2015 investigation generated a report (“Report”),
which stated that “overwhelmingly, employees generally do not trust [Pounds],” and
that Pounds “is generally found to be the least credible person in the unit.” The State
1 The district court also dismissed Pounds’s state law and Fair Credit Reporting Act claims. Pounds does not challenge those rulings on appeal, and thus may not reassert them on remand.
2 says that Pounds was not demoted or subject to any adverse employment action,
either as a result of the investigation or for any other reason.
The State released the Report in response to the second records request. When
Pounds asked individual defendant Brian Light why DCBS would disclose such a
report, he was allegedly told: “That’s what you get when you file for public office.”
DCBS allegedly offered Pounds an opportunity to request a “name-clearing hearing”
prior to the release of the Report, but then allegedly released the report before the
deadline offered to request the hearing had passed. When DCBS disclosed the
Report to the requesting reporter, DCBS wrote: “We believe this investigative report
contains the information you are wanting. If, after reading this report, you still want
emails, let me know.” Soon after, the reporter’s newspaper ran an article with the
headline: “A state investigation of a candidate for the Oregon Supreme Court found
him ‘the least credible person in the unit.’” Pounds later lost the election, garnering
26.5% of the vote.
1. The district court erred in adopting the magistrate judge’s finding and
recommendation that Pounds’s First Amendment claim did not allege state action
“reasonably likely to deter [Pounds] from engaging in his First Amendment speech”
and thus that he failed to plead an adverse employment action. Reviewing de novo,
Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1151 (9th Cir. 2019), we hold that
DCBS’s disclosure of the Report, which Pounds alleged to contain false stigmatizing
3 information, can constitute an adverse employment action that impermissibly chills
protected speech.
We begin by addressing whether there was an adverse employment action.
Our circuit has adopted the “reasonably likely to deter” test, where we ask whether
Pounds can establish that the actions taken by the defendants were “reasonably likely
to deter employees from engaging in constitutionally protected speech.” Coszalter
v. City of Salem, 320 F.3d 968, 970, 976 (9th Cir. 2003). “To constitute an adverse
employment action, a government act of retaliation need not be severe and it need
not be of a certain kind. Nor does it matter whether an act of retaliation is in the
form of the removal of a benefit or the imposition of a burden.” Id. at 975.
Taking Pounds’s allegations as true, we hold that disclosure of a report like
this one, allegedly containing false information of this type, prepared by a
government agency, regarding a public employee candidate for judicial office, can
constitute an adverse employment action for First Amendment purposes. This, after
all, was a report finding that state employees overwhelmingly viewed their attorney
coworker as untrustworthy and not credible. We reject the DCBS’s position that this
case involves “[m]ere threats and harsh words” like those in Nunez v. City of Los
Angeles, 147 F.3d 867, 875 (9th Cir. 1998).2
2 That DCBS’s email producing the Report can be read to falsely affirm that Pounds was demoted as a result of the investigation adds to the already sufficient “reasonably likely to deter” allegations.
4 Because we find an adverse employment action, we proceed to a “sequential
five-step series of questions”:
(1) whether [plaintiff] spoke on a matter of public concern; (2) whether [plaintiff] spoke as a private citizen or public employee; (3) whether [plaintiff’s] protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating [plaintiff] differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.
Greisen v. Hanken, 925 F.3d 1097, 1108 (9th Cir. 2019). Pounds has the burden of
proving the answers to the first three questions are “yes.” Id. If he succeeds, the
burden shifts to the State for the final two steps. Id.
DCBS concedes that Pounds’s candidacy for the Oregon Supreme Court
satisfies the first two steps. As to the third, Pounds’s pleadings must show that he
can:
(1) introduce evidence that the speech and adverse action were proximate in time, such that a jury could infer that the action took place in retaliation for [his] speech; (2) introduce evidence that the employer expressed opposition to the speech; or (3) introduce evidence that the proffered explanations for the adverse actions were false and pretextual.
Anthoine v. N. Cent. Counties Consortium, 605 F.3d 740, 750 (9th Cir. 2010).
Pounds has sufficiently alleged at least two of the three. First, DCBS
disclosed the Report proximate in time to Pounds’s protected speech—his candidacy
5 for the Oregon Supreme Court. Pounds filed for the position on March 5, 2018, and
DCBS produced the Report on March 28, 2018.
And second, there is sufficient evidence of pretext. The government claims it
had to release the Report because of its obligation to comply with Oregon’s public
records law. But the Report fell outside the ambit of the requested documents. The
DCBS maintains that Pounds was never demoted. For that reason, the Report could
not “explain the reasons for” a demotion that never took place. This sufficiently
establishes a triable issue as to pretext.3
Turning to the final two questions, as to which the government bears the
burden, DCBS contends that it “had an adequate justification for treating [Pounds]
differently from any other member of the general public” on account of the public
records request. Id. at 752. We reject this argument because the Report fell outside
the ambit of the requested documents. Nor has DCBS established at the pleading
stage that it would have reached the same decision regarding disclosure absent
Pounds’s protected conduct. Even putting aside that the records request came about
only because of the protected speech, the State turned over damning documents that
the records request did not call for. Looking at the allegations in the light most
3 Having found sufficient allegations of temporal proximity and pretext, we need not decide whether the statement “[t]hat’s what you get when you file for public office” shows employer opposition to the protected speech.
6 favorable to Pounds, we can infer that the protected speech played a role in the
decision. See id.
The State argues the DCBS employee defendants were entitled to qualified
immunity. The district court did not reach this question, and neither do we, given
the underdeveloped record.
2. The district court correctly dismissed Pounds’s due process claim because
Pounds did not adequately plead allegations sufficient to satisfy the “stigma plus”
test. Ulrich v. City & Cnty. of San Francisco, 308 F.3d 968, 982 (9th Cir. 2002). To
state a due process claim under the Fourteenth Amendment, Pounds “must show the
public disclosure of [an alleged] stigmatizing statement by the government, the
accuracy of which is contested, plus the denial of ‘some more tangible interest[] such
as employment,’ or the alteration of a right or status recognized by state law.” Id.
(citation omitted). “Accusations of dishonesty or immorality are sufficiently
stigmatizing to implicate a liberty interest, but less severe accusations must be
analyzed on a case-by-case basis, and allegations of mere incompetence or inability
are not sufficient.” Blantz v. Cal. Dep’t of Corr. & Rehab., Div. of Corr. Health
Care Servs., 727 F.3d 917, 925 n.6 (9th Cir. 2013). An “interest in reputation alone”
is insufficient to meet the alteration of a right or status prong of the “stigma plus”
test. See Paul v. Davis, 424 U.S. 693, 711 (1976).
Pounds’s claim falters at the “plus” portion of the “stigma plus” test. His
7 claim boils down to alleging a harm to his reputation, which the Supreme Court has
soundly rejected as insufficient to meet the stigma plus test. See id. Pounds leans
on language in the Oregon Constitution to try to save his claim: “No court shall be
secret, but justice shall be administered, openly and without purchase, completely
and without delay, and every man shall have remedy by due course of law for injury
done him in his person, property, or reputation.” Or. Const. art. I § 10. But the
Oregon Supreme Court has made clear that “Article I, section 10, guarantees injured
persons a remedy in due course of law for their injuries [that have already occurred];
it is not a ‘due process’ clause.” State v. Hart, 699 P.2d 1113, 1120 (Or. 1985) (en
banc). Thus, Pounds’s allegations do not state a claim for a due process violation.
3. The district court did not err in denying Pounds an opportunity to amend
his due process claim because any “proposed amendment [would] either lack[] merit
or would not serve any purpose because to grant it would be futile in saving [his]
suit.” Universal Mortg. Co. v. Prudential Ins., 799 F.2d 458, 459 (9th Cir. 1986).
In sum, we reverse the district court’s dismissal of Pounds’s First Amendment
retaliation claim and remand for proceedings consistent with this disposition, but
otherwise affirm the district court.
REVERSED in part, AFFIRMED in part, and REMANDED.4
4 DCBS shall bear Pounds’s costs on appeal.