Allen v. Scribner, 85-2125

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore NELSON, CANBY and NOONAN; NELSON; NOONAN
Citation812 F.2d 426
PartiesTerrance M. ALLEN, Plaintiff/Appellant, v. Jerry SCRIBNER, Hans Van Nes, Olaf Leifson, Gordon Tween, Robert Milam, Richard Rominger, Lyndon Hawkins, Robert Hobza, Robert V. Dowell, Charles D. Hunter, and John Does 9 Thru 250, Defendants/Appellees.
Docket NumberNo. 85-2125,85-2125
Decision Date29 September 1987

Stanley G. Hilton, Michael S. Sorgen, San Francisco, Cal., for plaintiff/appellant.

George Chris Stoll, San Francisco, Cal., Susan R. Oie, Sacramento, Cal., for defendants/appellees.

Appeal from the United States District Court for the Northern District of California.

Before NELSON, CANBY and NOONAN, Circuit Judges.

NELSON, Circuit Judge:

Terrance Allen, an entomologist employed by the California Department of Food and Agriculture ("the Department"), filed an action for damages against the The gravamen of Allen's complaint is that he was removed from the Mediterranean Fruit Fly Eradication Project ("the Project") in Santa Clara County, reassigned to another position, and otherwise harassed in retaliation for, and in anticipation of, remarks he made to the press about an alleged breach of public trust by Project management. The district court granted summary judgment for the defendants after denying Allen's motion for change of venue. On appeal, Allen seeks reversal of both the summary judgment and the denial of his venue motion.

Department, eight Department employees, 1 and two employees of the United States Department of Agriculture ("USDA"), 2 alleging violations of his civil rights under both 42 U.S.C. Sec. 1983 and the first amendment of the Constitution. 3

We reverse the summary judgment as to all of the defendants, affirm the denial of Allen's venue motion, and remand for further proceedings consistent with this opinion.


In June 1980, Mediterranean fruit flies were discovered in both Santa Clara and Los Angeles Counties. To combat this serious threat to California's agriculture industry, eradication programs were immediately established in both Northern and Southern California under the aegis of the Department, the USDA, and the two county agricultural commissioners. Allen was assigned to supervise the fruit collection/larvae detection section of the Santa Clara Project in July 1980.

On August 5, 1980, federal defendant Gordon Tween issued a memorandum prohibiting Project employees from talking to the media. In November 1980, Allen distributed to members of the Project's Technical Review Committee ("TRC") a report concluding that the medfly infestation was more extensive than Project officials had acknowledged in their statements to the press. Federal defendant Robert Milam learned of Allen's report at a November 20, 1980, meeting of the TRC, and allegedly issued to Allen a threat meant to keep the entomologist from airing any of his opinions publicly. 4 Nevertheless, in November and December of 1980, and in January of 1981, Allen told the news media that Project management "did not have a 'handle' " on the medfly infestation problem.

On December 18, 1980, Richard Rominger, Director of the California Department of Food and Agriculture ("CFDA"), appointed state defendant Jerry Scribner to take over leadership of the Project. Rominger and Scribner decided that the Project needed reorganizing to integrate the chain of command among federal and state employees. On December 21, 1980, Scribner implemented the reorganization plan he and Rominger had developed, taking Allen's collection section out of the trapping unit and elevating it to a separate unit reporting directly to Gordon Tween. By then, the medfly problem had become acute. Governor Edmund G. Brown, Jr., was about to proclaim a state of emergency in Santa Clara and Alameda Counties on December 24, 1980. On January 12, 1981, and again on January 14, Tween asked Scribner contacted Robert McCarry, the Personnel Officer for the Department in Sacramento, to inquire whether Allen could be transferred back to Sacramento. McCarry told him that personnel rules allowed management to assign employees according to the Department's needs so long as each employee's duties were commensurate with his classification. Scribner then informed Allen that he was transferring him back to Sacramento.

Allen to implement a new larvae surveillance system. Both times Allen refused to change his methodology. Also on January 12, 1981, Scribner allegedly told Allen to cancel a scheduled media interview and prohibited him from granting any further interviews. On January 15, 1981, Allen was removed from the collection unit. Upon being transferred to the Project's ground spray unit, Allen was given direct orders to stay away from the collection unit. However, on January 19, 1981, the new supervisor of the collection unit reported to Scribner that Allen had interfered with her efforts to give the crews their instructions that morning.

Allen contends that his new assignment consisted primarily of "trivial clerical tasks" and bore no relationship to his training and experience. He further alleges that he was the subject of continued harassment designed both to prevent him from voicing his opinion and to punish him for his having already done so. Specifically, his complaint asserts that: (i) state defendants Scribner, Hans Van Nes, Richard Rominger, and Robert Dowell made defamatory statements to the media with the intent of discrediting him; (ii) state defendants Scribner, Hans Van Nes, Richard Rominger, and Lyndon Hawkins intimidated him in order to prevent him from testifying before the California Senate Agricultural Committee; (iii) state defendants Olaf Liefson, Robert Hobza, Robert Dowell, and Charles Hunter threatened and harassed him between January and August of 1981. In his affidavit, Allen also alleges that one or more of the state defendants harassed him by confiscating his phone messages from the press. 5

Allen filed suit in the United States District Court for the Northern District of California, seeking damages from the state defendants under 42 U.S.C. Sec. 1983, and from the federal defendants directly under the first amendment of the Constitution. 6 He asserted that the defendants' actions caused him mental and physical harm, as well as damage to his reputation. On December 3, 1984, Allen filed a motion under 28 U.S.C. Sec. 1404(a) seeking a transfer of venue to the Eastern District of California. On January 4, 1985, the trial judge denied the motion because "the bulk of the cause of action occurred in [the Northern District]," and because he was "quite familiar" with the case after some three and one-half years. 7 The defendants then filed motions for summary judgment. The district court granted those motions on May 3, 1985, and Allen timely filed his notice of appeal.


I. Did Allen's remarks to the media fall outside the protection of the first amendment as a matter of law?

II. If Allen's remarks are not outside of first amendment protection, did undisputed facts show that he would have been transferred and harassed on the basis of his non-speech conduct anyway?

III. Were Scribner and the federal defendants entitled to summary judgment on the ground of qualified immunity?

IV. If this court decides to reverse the summary judgment, should it remand with instructions to grant Allen's motion for change of venue?


We review the district court's grant of a motion for summary judgment de novo. Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir.1985). We view the evidence in the light most favorable to the party opposing the motion and accord that party's papers a liberal construction. Id.; see also 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Sec. 2738, at 484 (1983). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., --- U.S. ----, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970)).

We affirm only if there is an absence of any genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. Lew, 754 F.2d at 1423. The Supreme Court has analogized the standard for summary judgment to that for a directed verdict and observed: "If reasonable minds could differ as to the import of the evidence ... a verdict should not be directed." Anderson, 106 S.Ct. at 2511. The Court also noted that "at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id.

We review the district court's denial of a motion to change venue for abuse of discretion. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 279 (9th Cir.1979).

I. Allen's Speech as Protected Expression

In evaluating the first amendment rights of a public employee, the threshold inquiry is whether the statements at issue address a matter of public concern. 8 As the Supreme Court has so often recognized, such speech occupies the "highest rung of the hierarchy of [f]irst [a]mendment values." NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913, 102 S.Ct. 3409, 3425-26, 73 L.Ed.2d 1215 (1982); see also Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983); Carey v. Brown, 447 U.S. 455, 467, 100 S.Ct. 2286, 2293-94, 65 L.Ed.2d 263 (1980). It is "more than self-expression; it is the essence of self-government," worthy of special protection. Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 215-16, 13 L.Ed.2d 125 (1964); see also Mills v. Alabama, 384 U.S. 214, 218-19, 86 S.Ct. 1434, 1436-37, 16 L.Ed.2d 484 (1966); New York Times Co. v. Sullivan, 376 U.S. 254, 269-70, 84 S.Ct. 710, 720-21, 11 L.Ed.2d 686 (1964).

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