On Wednesday, August 21, 2013, the U.S. Court of Appeals for the Ninth Circuit held in Dahlia v. Rodriguez that Dahlia, a Burbank police detective, could assert a First Amendment retaliation claim based on his allegedly having complained to authorities about abusive interrogation tactics in his department.  This case expressly overturns a prior Ninth Circuit decision that made it more difficult for peace officers to assert First Amendment claims against their own employers. 
 
By way of background, the United States Supreme Court has held, in the landmark case Garcetti v. Ceballos that public employee speech made pursuant to “official duties” does not have First Amendment protection, and cannot form the basis for a retaliation claim.  In the 2009 decision Huppert v. City of Pittsburg, the Ninth Circuit held that peace officers in California inherently have, as part of their “official duties,” the duty to report illegal conduct by anyone, including their own colleagues and superiors.  Huppert’s interpretation of “official duties” actually included much of what can form the basis for a whistleblower claim by a peace officer.  It also provided a fairly bright-line rule for when an officer’s conduct was within “official duties,” and hence for determining whether or not the officer could state a First Amendment retaliation claim.
 
Dahlia expressly overruled Huppert.  It did so on the basis that the case’s bright-line rule relating to a police officer’s “official duties” was based upon a generic description rather than a fact-based inquiry of “official duties” as contemplated by the Supreme Court in Garcetii.  In rejecting Huppert, the Dahlia opinion instead requires closer evaluation of the facts of the particular case to determine an employee’s “official duties.” The opinion cites prior Ninth Circuit decisions interpreting Garcetti, such as Freitag v. Ayers, in which it found that a correctional employee’s reports to a state senator and state inspector general were outside of official duties, but that the employee’s internal reports were within the scope of duties, and hence not protected.  The Dahlia Court states, “In more than a half-dozen cases since Freitag, we have planted additional guideposts for determining the scope of a plaintiff’s professional duties for purposes of the First Amendment.”    
 
The Court’s new Dahlia opinion does offer some explicit guidelines for interpreting employees’ “official duties” in cases alleging First Amendment retaliation.  First, “whether the employee confined his communications to his chain of command is a relevant, if not necessarily dispositive, factor in determining whether he spoke pursuant to his official duties.  When a public employee communicates with individuals or entities outside of his chain of command, it is unlikely that he is speaking pursuant to his duties.”

The Court described, second, that the subject matter of the speech at issue was highly relevant.  “When an employee prepares a routine report, pursuant to normal departmental procedure, about a particular incident or occurrence, the employee’s preparation of that report is typically within his job duties.”  On the other hand, “if a public employee raises within the department broad concerns about corruption or systemic abuse, it is unlikely that such complaints can reasonably be classified as being within the job duties of an average public employee,” unless the “employee works for Internal Affairs or another such watchdog unit.”
 
Third, the Court described: “[W]e conclude that when a public employee speaks in direct contravention to his supervisor’s orders, that speech may often fall outside of the speaker’s professional duties.  Indeed, the fact that an employee is threatened or harassed by his superiors for engaging in a particular type of speech provides strong evidence that the act of speech was not, as a ‘practical’ matter, within the employee’s job duties notwithstanding any suggestions to the contrary in the employee’s formal job description.”
 
The Court went on to apply these considerations to Dahlia in particular, to decide whether the trial court erred in dismissing the case based only on the facts as Dahlia had pleaded them.  The Court determined that the complaint should have survived a motion to dismiss with prejudice, because it alleged speech by Dahlia, that could (based on evidence later presented) be shown to be outside of Dahlia’s job responsibilities.  These included his complaining of alleged improper conduct by his colleagues to department Internal Affairs officers, to his union, and ultimately to the Los Angeles Sheriff’s Department.
 
Finally, the Ninth Circuit held that Dahlia’s complaint sufficiently alleged that the Department took an “adverse employment action” against him.  A plaintiff must prove an “adverse employment action” in order to proceed with a First Amendment retaliation claim.  The Ninth Circuit determined that the complaint’s allegation that Dahlia was placed on administrative leave, even though it was with pay, met the requirement for such an adverse action. 
 
The Dahlia decision is noteworthy because it was rendered by a panel of 11 judges rather than the usual panel of three.  This procedure authorizes the Court to change its own prior precedent.  The three-judge panel that initially heard Dahlia found in favor of management, based on Huppert.  The opinion described that the Court was required to rule in management’s favor based on prior precedent, but encouraged other judges of the Ninth Circuit to rehear the case in order to reverse Huppert and change the law.  The Court did so, and this Dahlia opinion is the result.
 
The decision contains a concurring opinion by Judge Pregerson, who believes that First Amendment protection should be available even for employees who provide reports of wrongdoing up the chain of command. 
 
Judge O’Scannlain wrote an opinion concurring only in the judgment, in which Judge Kozinski joined, defending the Huppert case, and arguing that the majority opinion in Dahlia was straying from underlying principles in Garcetti.  

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