Chief Justice of 13th Court of Appeals not entitled to qualified immunity in First Amendment retaliation in employment suit by staffing attorney

Anderson v. State of Texas, No.15-40836 (5th Cir. January 10, 2017)

This is a First Amendment in employment case where the U.S. 5th Circuit denied a judge’s claim for qualified immunity while acting in his administrative capacity. This is a 43-page opinion and dissent.

Anderson is a lawyer licensed to practice law in Texas since 1984. He was able to get into a system of recommendations so that he was consistently hired by justices at the Thirteenth Court of Appeals as a staffing attorney. As a staffing attorney, Anderson’s duties did not include any requirement or authority to report judicial misconduct within the 13th Court of Appeals. In 2012 Anderson was advised by the justice to whom he was assigned that Chief Justice Valdez may have been improperly obtaining double reimbursements from both the 13th Court and Valdez’ political campaign fund, including travel expenses. Anderson asserts, on his own and without direction, he filed a complaint against Chief Justice Valdez to the Texas Supreme Court and the Texas State Commission on Judicial Conduct. While the investigation was ongoing, Anderson’s justice retired so Anderson applied to Justice Perkes for the senior briefing attorney position.  Justice Perkes informed Anderson he had the job. While it was the normal practice that each justice pick their own briefing attorneys, Chief Justice Valdez then informed all justices they could not hire Anderson.  Afterwards, the job offer was withdrawn.  Anderson asserts this was retaliation for his First Amendment right to speak out on a matter of public concern and filed suit. Chief Justice Valdez sought dismissal on the pleadings and additionally claimed qualified immunity. His motion was denied at the trial court level. Chief Justice Valdez appealed.

Even though Chief Justice Valdez asserts Anderson does not establish he was aware of Anderson’s complaints, Anderson’s pleadings clearly indicate assertions of knowledge and that the complaints were the basis of the retaliation. From a pleading standpoint, Anderson was not required to allege how Valdez knew of the letter and complaint, only that Valdez knew.  Next, the 5th Circuit notes that Supreme Court precedent allows the public employer to control an employee’s speech if made pursuant to the employee’s official duties.  A public employee’s speech is made pursuant to his official duties when that speech is “made in the course of performing his employment,” whether or not that speech was specifically “demanded of him.” However, an employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.  Anderson’s speech was not controlled by the 13th Court of Appeals. No one reviewed it for accuracy or compliance with the employer’s policies. It was not listed as being sent by the 13th Court of Appeals. After a detailed and lengthy analysis, the 5th Circuit held it was the speech of a citizen and protected by the First Amendment. After an additional analysis of case law (with such fun phrases as “Reading Howell in the framework of Cutler properly synthesizes Lane’s effect on Garcetti.”) the 5th Circuit held it was clearly established law at the time that Chief Justice Valdez should know his actions would violate Anderson’s First Amendment rights.  As a result, Chief Justice Valdez was not entitled to qualified immunity.

Justice Jones dissented. He first agreed that Anderson’s speech was protected by the First Amendment. However, he asserts the issues and facts are much more complex than the majority implies and the issue was not clearly established. He would have granted the claim for qualified immunity.

If you would like to read this opinion and dissent click here. The Panel includes Justices Jones, Wiener, and Higginson.  Justice Wiener delivered the opinion of the court. Justice Jones dissented.  Attorney for the Appellant is listed as Scott A. Keller, Austin, TX. Attorney for the State of Texas is listed as Lawrence Morales, II, San Antonio, TX.